Denied Paternity: Parental Rights and the Guardianship of Infants in Ireland,1937–1964

Common Law and Nineteenth-century Legislation

Sarah Abramowicz argues that the first legislation on paternity rights was the Tendure Abolition Act 1660 which granted fathers the right to appoint guardians to their children by will, and was actually designed to strengthen fathers’ rights. ⁴ Mary Lyndon Shanley believes that the weakening of fathers’ rights began with the 1839 Custody of Infants Act which created certain maternal custody rights. ⁵ The Custody of Children Act 1839 gave the court power to award custody of a child to the mother until the child reached the age of seven, provided she had not been found guilty of adultery. Legislation provided the court with the power to provide the mother with custody for the first time albeit under limited circumstances. Diane Urquhart and others have outlined this sexual double standard which was also apparent in the grounds for divorce. ⁶ Adultery on the part of the wife provided adequate evidence for a husband’s need to end the marriage and was considered grounds to deny a mother guardianship of her children. Michael Grossberg and Mary Ann Mason argue that “under the system of English law inherited by the colonies, the father had an absolute right to the custody of his children, and this was also followed by American courts well into the 1800s.” ⁷

Subsequent legislation in the form of the Guardianship of Infants Act 1886, which was also extended to Ireland, allowed a mother to become the guardian alone (or jointly with others) on the death of the father. ⁸ The 1886 Act gave the Supreme Court the power to deny a parental custody if the parent had abandoned the child or allowed the child to be brought up by others “for a substantial period without contributing to the child’s upkeep.” ⁹ In this instance, the parent would have to prove their capability as a parent to the court. Women who may have placed their children in a foster home or children’s home temporarily, could therefore, be denied paternity of their children on the death of the father. Under the Custody of Children Act 1891, any application by a parent for the custody of the child, where the child is being brought up “in a different religion to that in which the parent has a legal right to require that the child should be brought up, the court shall have power to make such order as it may think fit.” ¹⁰ If the mother was of a different religion of that of the father and seeking custody of her child, the court had the power to deny her custody based on religious grounds. Stephen Cretney argues that “the father of a legitimate child was exclusively entitled to exercise parental authority over the child and the child’s mother had no legal right to custody or care and control.” ¹¹ Under the Custody of Children Act:

The father may use his power over the children as a means to induce the mother to do what he wishes, by the threat of removing them from her. He can take the children away from her entirely and entrust them to the custody of a third party without her consent. ¹²

In England, the Guardianship of Infants Act 1925 was pushed by women’s organizations in Britain, but the act did not give them what they demanded. It “still denied a wife any legal authority over her child during marriage. She could only obtain such authority by seeking a court order.” ¹³ The Act did, however, make regard for the child’s welfare first which they hoped would side with women. ¹⁴ It was not until 1973 in Britain that legislation was eventually introduced giving a mother the same rights and authority as the father. ¹⁵

The 1937 Constitution

Ireland became a Free State independent from Britain in 1922 and set about drafting a national constitution. ¹⁶ The 1937 Irish Constitution outlined the basic legal foundations of the newly founded Irish Free State which enforced traditional gender roles and vowed to protect the family, albeit a narrow definition of family. According to Article 41.1 of Bunreacht na hÉireann, the Irish constitution, “the State recognises the family as the natural primary and fundamental unit group of society…. The State, therefore, guarantees to protect the family in its constitution and authority.” ¹⁷ The family recognized was the “married family” and divorce was outlawed under the constitution. Fred Powell and Margaret Scanlon refer to the “patriarchal family” ¹⁸ arguing that patriarchal power produced asymmetric power in the family structure which also undermined the role of women and children in terms of legislation and public life. ¹⁹ Similarly, Lindsey Earner-Byrne and Diane Urquhart have argued that unmarried mothers were seen as a threat to the “gendered family,” in which women were regarded as the purveyors of moral and religious instruction within the home. ²⁰ According to Article 42.1 “The State…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.” ²¹ The constitution recognized both parents as guardians and did not differentiate on the grounds of religion. Nevertheless, cases which were brought before the court prior to the 1964 exemplified rulings in line with common law which aligned with the father. The position of women under the Irish constitution has been subject of much debate and criticism in recent years. ²² According to Article 41.2 “The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to neglect their duties of the home.” ²³ As Mary O’Dowd argues, the male dominated institutions of Church and State marginalized the social role of women. ²⁴ Archbishop John Charles McQuaid was significantly influential in the drafting of the constitution. ²⁵ As Maryann Valiulis stated:

This was not the era of gender concerns, but the era of nationalism and nation building coupled with blatant patriarchy. In the main, post-revolutionary Irish society emerged as conservative, traditional and overwhelmingly Catholic, infused with male privilege. ²⁶

As John Whyte argues, the 1931 Constitution was “one more instance…since the establishment of the State to enshrine Catholic principles in the law of the land.” ²⁷ Gendered roles were outlined for men as well as for women, where men should be the “providers” and “protectors” of women. Nevertheless, many women were content to accept traditional gender roles in early twentieth-century Ireland. ²⁸ Caitriona Beaumont argues that Church teaching on the “natural” function of women as wives and mothers was accepted by the vast majority of Catholic men and women. ²⁹ Similarly, Tom Inglis argues that it was women who carried religious moral and civil code from the Church into the home. ³⁰ Women as the portrayers of morality in the family were pressured not only to comply with moral codes, but to disseminate moral disciplines on their children. As Earner-Byrne argues, the idea of oppression from the Catholic Church does not consider issues such as class tension or gender inequality. ³¹ However, many Irish Catholics did not live completely within the restraints of Catholic moral teaching, particularly when it came to family planning. ³² In her research on paternity rights in Victorian England, Claudia Nelson recounts the case of Annie Besant, who lost custody of her children after disseminating information about birth control. ³³ As previously mentioned, women were vulnerable to losing child custody when accused of marital infidelity, additionally, they were also judged on their personal behavior, particularly in relation to sexual norms. Evidently, religion and social norms played a deciding factor in cases of child custody. In addition, religion could be an important in determining the guardianship of children in cases of a mixed religious household.

Cases of Child Custody and Mixed Marriage

The issue of “mixed-marriage,” in terms of religion, remained one of the main concerns in child custody cases which came before the Irish courts from 1937 to 1964. According to the Catholic Church, if a Protestant and Catholic couple married, an ante-nuptial agreement must be signed, which promised to raise any children of the marriage in the Catholic faith. However, according to common law it was the father, as head of household, who determined the child’s religious education. According to Donal Barrington in 1953:

The fact that the Courts have held that ante-nuptial agreements duly made and acted upon are binding on the father, and that the power of deciding the religion of the children is vested in the parents jointly, does not mean that the father and mother have equal rights over their children. The law considers that the father is the head of household. ³⁴

Under the 1937 Constitution, both parents are given the task of educating their children, but it does not outline the rights of the mother and father respectively in terms of religious and social education. By examining custody cases in the courts, it is clear that common law, and the right of the father as head of household, continued to supersede that of the mother.

Case 1

On 21 January 1937, just months before the 1937 Constitution was enacted on 1 July 1937, an Irish woman left her husband in Glasgow, with their child aged three, and returned home to Dublin to live with her mother. In the case, the Irish court ruled at the father was entitled to the custody of the child “as it was he who had the right to determine his child’s religious upbringing.” ³⁵ The mother made an appeal to the High Court stating that she had ample means to support herself and the child after completing an apprenticeship in dressmaking. She promised to bring up in the child under the religion of the father. However, the mother did not win the appeal and a conditional order of habeas corpus was granted to her husband. ³⁶

Case 2

A similar case was brought before the courts just days after the enactment of the Irish Constitution. Mrs Clarke, an English citizen married an Irish man and became Catholic on her marriage. Mrs Clarke was granted a divorce on grounds of cruelty in the marriage in England. Shortly after the divorce her child had been taken from school in England by the father without her consent and taken to a convent school in Naas. She obtained a conditional order directing her husband to produce the child. The father appealed on the grounds that “the infant was a citizen of Saorstat Éireann” and if the court ordered to remove him to England with the mother “the order of the High Court would be against public policy, contrary to the citizenship rights of the infant…and without due regard to the right of the father to determine that the infant should be educated and brought up in the Catholic religion.” ³⁷ The father was not satisfied the child would be brought up Catholic in England. “He considered it fit and proper to take possession of the child and bring it to this country and put it where it will get a proper education.” ³⁸ It was ruled that “the mother had been received into the Catholic Church without instruction in the religion and that was not the lady to whom the child’s religion may be left” therefore, the court ruled that custody be given to the father. ³⁹ The court stated that the religious education of the child was not satisfactory in the hands of the mother even though she had converted to the Catholic faith on marriage.

Case 3

In 1947, a Protestant and Catholic parent married and had five children but separated in 1939. An ante-nuptial agreement was signed before the marriage promising that the couple would raise any children of the marriage in the Catholic faith. On the separation, the father agreed to pay the mother for the maintenance and education of the three youngest children on the condition that they were to be brought up in Protestant faith but under the mother’s care. The father then placed the three oldest children in a Protestant home. Due to financial difficulties the mother later handed over custody of the children to the father who placed them in the same home as the older children. The mother stated that they were placed in the home without her consent or approval. ⁴⁰ The father had died, and the trustees of the home refused to hand over the children to their mother. Under the Guardianship of Infants Act 1886, the mother became the guardian of her children on the death of the father. ⁴¹ In 1947, the mother brought her case before the courts seeking custody of her children and wanted to bring them up in the Catholic faith. The trustees of the home represented the children in the court and declared that the children expressed their wish to stay in the home. Arguably, the reliability of the trustee’s statement to the court must be questioned. Justice Davitt stated that it was the father who had the right to determine the religion of his children and the court was not entitled to ignore the father’s wishes and the mother’s appeal was refused. ⁴² It was argued that Mrs Frost had surrendered the custody her children by placing them in a home. According to Justice Gavin Duffy “the fact that an ante-nuptial agreement says that the children are to be brought in a particular religion does not necessarily mean that the parent who belongs to that religion will obtain custody of the children.” ⁴³ The court ruled that the father’s faith must be respected, and the children were to stay in the home. In the event of a disagreement, the father had the right to decide upon the religious education of the children. ⁴⁴ The ruling in the Frost case consolidated the power of the father as guardian of the children, even after death.

Case 4

The Corcoran case in 1947 involved an English woman and a member of the Church of England who married a Catholic man in Ireland. However, following differences in the religious upbringing of their daughter, divorce proceedings in London gave the mother custody of the child. Following the court order the father left the country with the child and went to Dundrum, County Tipperary. The father had been sent to Winchester Jail for not complying with the court order in London and the girl was left with the grandmother in Tipperary who refused to part with the child. ⁴⁵ The father feared that his daughter would not be raised in the Catholic faith as agreed before the marriage. The mother stated, “should this honourable Court grant me custody of my child, I propose sending her to a Catholic school in England…. When she arrives at the age of discretion, she may make her own decision as to what religious creed she may make on her own.” ⁴⁶ The court ordered that it was the father’s right to choose the religion of his child and therefore, the child would remain Catholic but would stay with the mother. This case differentiated from previous rulings in similar cases. The child was ordered to return to England to the mother, a member of the Church of England, on the condition that the child be raised a Catholic. It was stated that the father had been found guilty of cruelty to his wife and therefore, the child’s best interests were with its mother. The Corcoran case was referred to regularly in subsequent “mixed marriage” cases, however, as will be exemplified, the courts continued to rule in favor of the father.

Case 5

In a similar case, Mrs. Begley, a member of the Catholic Church married a member of the Church of Ireland, and ante-nuptial agreement was signed stating their children be brought up as Catholics. ⁴⁷ Her husband abandoned her taking their three children, who he placed in the care of his parents. In 1948, Mrs. Begley went before the courts and argued that her husband had not abided by the terms of the ante nuptial agreement as her children were not being brought up in the Catholic faith. ⁴⁸ In this case the ante-nuptial agreement was overlooked, and the children were left in the custody of their grandparents where they would be raised in the Protestant faith under the father’s wishes. The Begley case shows that the court were not always sympathetic to the Catholic faith in particular, but with the wishes of the father.

Case 6

In 1948, a Catholic woman and a man who was a member of the Church of Ireland separated and a case for child custody ensued. Mrs Isherwood stated that she was willing to return to her husband provided he allowed their children to be brought up in the Catholic faith. The Court ruled this request would deny the rights of the father, who was Church of Ireland, and the mother was ordered to return the children to their father. ⁴⁹ Not only did women have no say in their children’s religious upbringing, but religious differences repeatedly denied women custody of their children.

Case 7

In 1950, the Tilson case put an end to the continued ruling which gave the father special permission with regard to religious education. The case was the first to challenge the common law on guardianship in the Irish courts. The Tilson case centered on the marriage between a Catholic and Protestant couple with a pre-nuptial promise by the Protestant father rear his sons in the Catholic faith. ⁵⁰ However, Mr Tilson left home unexpectedly taking the three eldest children with him and placed the boys in a Protestant orphanage. Justice Gavin Duffy argued that common law should no longer be acceptable as the predominant ruling over the Constitution. He stated that the common law “whereby fathers enjoyed the sole prerogative of determining the religious education of their children was contrary to Article 42.1 of the Constitution.” ⁵¹ The mother was given custody of the children, but an appeal was made by Mr Tilson. ⁵² On appeal, the Supreme Court, affirmed the decision of the High Court by four Judges to one. Justice James Murnaghan stated:

The true principal of the Constitution is this: the parents, father and mother, have a joint power and duty in respect of the religious education of the children. If they, together, made a decision and put it into practice, it is not in the power of the father or the mother to revoke such against the will of the other party. ⁵³

Justice Monaghan admitted that the father had an opinion in regard to the children’s education but this was gone since 1937. ⁵⁴ The Judges confirmed that the constitution entrusted the right and duty of educating the children, not to the father but to both parents. ⁵⁵ The Irish Law Times reported that the ruling had “invaded one of the most sensitive areas of interdenominational relations in Ireland.” ⁵⁶ The mother was awarded custody of the children revoking common law which dominated child custody cases in the Irish courts.

As exemplified in the cases above, married women were often denied custody of their children over their husband due to common law which granted the married father the right to determine the religious education of his children. The case rulings are not unusual in comparison to custody rulings in nineteenth and early twentieth century Britain. However, from 1925 with the Guardianship of Infants Act 1925 and the publication of the Curtis Report in 1946, more emphasis was focused on child welfare, and rulings became generally more focused on what was best for the child. ⁵⁷ Unfortunately, we do not know much about the women who lost their cases or what happened thereafter. Evidently, religion played a key part in the determination of child custody cases in the courts. Furthermore, religious welfare organizations and congregations also had a significant influence over the guardianship of children of unmarried parents.

Unmarried Mothers

In contrast to the married mother, parental authority in respect to an “illegitimate child” was vested solely in the unmarried mother. As outlined by Maria Luddy, Lindsey-Earner-Byrne, Sarah-Anne Buckley and others, pregnancy outside of marriage was stigmatized for much of the nineteenth and twentieth centuries. ⁵⁸ This stigmatization left limited State assistance and public support for single mothers and their children. Irish unmarried mothers felt pressurized to enter institutions, or migrate to Britain, if they did not receive support from their families. ⁵⁹ The institutionalization of women in Magdalene asylums, mother and baby homes and county homes left many unmarried mothers in the care of religious congregations. ⁶⁰ Unmarried mothers found it extremely difficult to keep their children due to financial strain, social stigma and often a lack of family support. ⁶¹ Mothers were often forced to sign away guardianship of their child on entry to a mother and baby home, therefore giving the home the legal capacity to arrange an adoption. There was a general belief that unmarried mothers were “immoral” and therefore, were incapable of becoming “good mothers.” ⁶² Anne Fitzgerald-Kenny ⁶³ was one of two inspectors from the Department of Local Government and Public Health. In 1932, Fitzgerald-Kenny stated that women who had more than one child outside of marriage were of “weak intellect and completely lacking in moral fibre.” ⁶⁴ There was a strong belief that adoption was what was best for both mother and child. In 1966, one case worker for Hope Lodge Mother and Baby Home in Birmingham stated, “I cannot agree to the pressure, no matter how slight, for the girl to keep her baby.” ⁶⁵ Similarly, in 1971, Cecil Barrett, the Chairman of the Central Council of Catholic Adoption Society in Ireland, stated that, some women have a “selfish reluctance to part with her child” and “almost inevitably comes later to find herself with a burden which is neither fully acceptable nor which is properly equipped to carry. Both mother and the child suffer the consequence.” ⁶⁶ Adoption was therefore, regarded as the best solution for both mother and child.

Although legislation on adoption was not introduced in Ireland until 1952, precarious “informal” adoptions were arranged within Irish mother and baby homes. ⁶⁷ In terms of parental rights, unmarried mothers had little support or opportunity to keep their children. Oral testimonies have revealed cases of “forced adoption” or coercion into signing adoption papers in Mother and Baby Homes in both Ireland and Britain. ⁶⁸ When legislation was eventually introduced in Ireland in 1952, it required consent from the mother.

Applicants for adoption orders…are required to submit to the Board the birth mother’s consent. The Board’s power to dispense without the mother’s consent…may be only done on the grounds: If she cannot be located, if she is insane or if the child has been under the care of the applicant for at least three years and there is evidence that the mother already consented to the adoption of the child by the applicants. ⁶⁹

It is clear that these regulations were not always adhered to by adoption societies and that many adoption orders continued to be granted without the mother’s consent. ⁷⁰ The legislation was also unclear in terms of unmarried mothers right to their child prior to fostering. Some unmarried mothers used fostering as a temporary means of securing a place for their child, with the intention of taking the child back and raising it herself at a later date.

Case 8

There was distinct precarity when it came to unmarried mothers’ rights to keep their children. In a case which was brought before the courts in 1946, an unmarried mother was seeking the return of her child from a foster mother. The Judge stated that “Irish decisions were scantly on the rights of the unmarried mother” and “according to Article 41 of the Constitution on the family, the two-parent family was to be protected.” ⁷¹ It was ordered that the child remain with the foster parents and the unmarried mother was denied custody of her child.

It was not strictly children of unmarried parents who were institutionalized and stripped of their parental guardianship. Raferty and O’ Sullivan have argued that poverty was the primary cause of institutionalization: “approximately eighty per cent of all children committee, and over ninety per cent of girls, came under the category ‘lack of proper guardianship’.” ⁷² They describe this cohort of children as those of unmarried parents who were not eligible for adoption, children who lost one or both parents, parents who were ill or unable to adequately care for them and families who were unable to care for them due to poverty. ⁷³ Between 1869 and 1969, 150,000 children were placed in industrial schools and 15,000 placed in reformatory schools. ⁷⁴ Sarah-Anne Buckley has examined cases of the National Society for the Prevention of Cruelty to Children (NSPCC) from 1889 to 1956. She found that while there were cases of cruelty and neglect many children were taken from their families due to poverty. She states that “the continuation of this policy of institutionalisation by the State ignored the socio-economic reality for families.” ⁷⁵ This poses the question of parental rights versus the State. Arguably, in many of the cases children were taken from family homes and placed in more vulnerable situations in an institution. Where a family was considered unable to meet the needs of its children, it was believed that church-run institutions and voluntary agencies were in the best position to provide assistance. ⁷⁶ Powell and Scanlon have argued that “the construction of children as welfare subjects” has denied children a voice in the public sphere and assumes that children are not competent to participate in decision-making. ⁷⁷ Robbie Gilligan has criticized the passivity of the state—both the British state that governed Ireland until 1921 and the Irish state that emerged following political independence in matters to do with welfare provision. He argues that while the state played a limited role in regulating and funding such provision, it played almost no role in the direct delivery of provision. ⁷⁸

Unmarried Fathers

At a time when unmarried mothers were believed to be “immoral” and incapable of making good parents, encouraging a relationship with the father was not enforced and adoption was considered the best outcome for the child. From 1862, a putative father could be pursued for maintenance under the Poor Law, however, the number of unmarried fathers contributing toward their child’s upbringing was considerably low. ⁷⁹ Poor Law Commissioners believed that mothers seeking money for their children “victimized men, as women shamelessly petitioned courts for support using perjury and extortion.” ⁸⁰ Their concern was that by seeking financial help toward his child, this might “bring about disgrace to the innocent father.” ⁸¹ This was not unusual, Rachel Fuch examines the conflicts that arose in the French courts during the nineteenth and twentieth centuries when single mothers took men to court in order to secure material support and legal recognition for their children. She argues that “women who forced men to recognize children conceived outside marriage” were seen as a threat to “destabilize the heterosexual reproductive unit that they deemed central to French society.” ⁸² In Ireland, while the 1930 Affiliation Order Act was in place, affiliation orders were almost non-existent in the country. It was extremely difficult to prove paternity in the courts therefore, only two out of 100 cases which went before the court was paternity successfully established and the man solvent. ⁸³ The legislation, far from encouraging the involvement of the unmarried father with his child, discouraged it. Under the 1952 Adoption Act, unmarried parents or any relative of the child, were prohibited to adopt the child. This meant that fathers could not adopt their own children and were denied paternity, as were unmarried mothers. Katherine Holden argues that that paternal absence and invisibility of the father was encouraged by the fact that the law give unmarried fathers no right to any involvement with his child, only financial responsibilities. ⁸⁴

Case 9

In the Nicolaou case in 1964, an unmarried father wished to seek custody of his child however, the mother had already arranged for the child to be adopted. An adoption order was made unknown to the father, before he applied to the court for custody. According to the judgment:

The High Court judgments rested in part upon the fact that the appellant is not a citizen of Ireland. This Court expressly reserves for another and more appropriate case in consideration of the effect of non-citizenship upon the interpretation of the Articles in question. ⁸⁵

The court ruled that the child should be placed for adoption. The court’s ruling considered the fact that the father was not a citizen of Ireland, rather than the question of parental rights itself. Although the judgment in the Nicolaou case called on a “more appropriate case” which would include a citizen of the state, in 1989 a similar case was taken to court by an Irish citizen who was also denied custody. In K v W and Another, a child was placed for adoption without the knowledge of the father. The father went to the Supreme Court where he sought to adopt his child. The court ruled that the unmarried father had the right to guardianship of his child under the Guardianship of Infants Act 1964. This application would take several months, during this time the child was placed with an adoptive family. The judgment ruled that by the time the application of guardianship was completed, the child would have a psychological bond with its adoptive parents and therefore, the child was to be left in adoptive care. ⁸⁶

Case 10

In 1956, a couple involving an Irish father and French mother had divorced in France. Under divorce proceedings it was agreed that the mother would have custody of the child and the father would be given two months of the year during the summer. However, the father refused to send the four-year-old back to France in August as arranged. The mother came to Limerick and took the child out of school. She was driving to the boat when she was stopped by a Gardaí at Santry. In Irish court proceedings the Judge stated that under Irish legislation divorce was not recognized. “The relief-divorce which Mrs McCutcheon [the mother] was seeking in the French courts was something that was foreign to the law of this country…. Where a contest arose between the parties, the court would carefully consider whether that right of the father should be interfered with, having regard to the welfare of the child, the conduct of each of the parties and the wishes of each parent.” ⁸⁷ In addition, it was stated that under the French system Mrs McCutcheon was allowed to “marry again…and the acquisition of a stepfather was a complication which was not likely to conduce to her [the daughter’s] psychological welfare.” ⁸⁸ A potential step-father was unjustifiable according to the ruling. The Judge ruled that it was their duty to protect the married family as stated under the 1937 Irish constitution. Therefore, the birth father was granted custody of the child.

The Guardianship of Infants Act 1964

Mary Kenny describes the 1960s in Ireland as a period in which the country took its “first steps in prosperity” for the first time under Independence, and “Catholic Ireland showed its liberal face.” ⁸⁹ The Second Vatican Council (1962–1965) led to a softening of traditionally strict Church rulings. “Mixed marriages” between Catholic and Protestant faith were considered “inter-church” marriages and no longer considered the difficulty they once were. ⁹⁰ While some Catholics held Vatican II responsible for what they see as the weakening of faith, others argued that the introduction of the Second Vatican coincided with changes in society in the 1960s. ⁹¹ In 1959, Fr. John C. Kelly stated that “too many people in Ireland today are trying to make do with a peasant religion when they are no longer peasants anymore. We are growing and developing a middle-class culture, and we must have a religion to fit our needs.” ⁹² 1960s Ireland was also influenced by women-led activism on gender equality in Britain and the US, student activism around Europe, anti-colonial movements, and Civil Rights movements in the US and subsequently, Northern Ireland. ⁹³ The Married Women’s Status Act 1957 allowed a woman to sign a contract, hold property, sue and be sued for the first time in Ireland. Issues of gender equality in Irish legislation were being questioned and there were growing demand for equal pay.

Eileen Connolly argues that the Guardianship of Infants Act 1964 was in response to the ruling in the Frost case and growing demands for reform to give mothers guardianship rights over their children, particularly in the event of the death of the father. ⁹⁴ In 1963, speaking on the Guardianship of Infants Bill, Minster Charles Haughey stated:

I think the situation where the father, just because he is the father, has some superior rights over the mother in this regard is indefensible and I regard this section now as putting right, if you like, a wrong that has existed for centuries. This is the final step, I think, in the achievement of equality of the sexes in this regard. ⁹⁵

There was little opposition to the Bill and Dr Noel Browne argued that “there are cases on record in our society over the past thirty or forty years in which a decision was taken to deprive a mother of a child, or children, on political or religious grounds.” ⁹⁶ Under Section 6 of the Act “married parents of a child are joint guardians and have equal rights in relation to the child.” ⁹⁷ The Guardianship of Infants Act 1964 gave the mother equal say in all decisions regarding the upbringing and welfare of the child. Under the 1964 Act, a father seeking to be made a guardian, must convince the court that he is prepared to protect the welfare of the child—this means the “child’s religious, moral, intellectual, physical and social welfare,” not only by making maintenance payments. ⁹⁸ However, inequality in terms of parental rights persisted beyond the 1964 Act.

Parental Rights Issues Continue

In 1971, the Irishwomen’s Liberation Movement’s manifesto Chains or Change? stated that men still enjoyed a range of decision-making rights in relation to the upbringing of their children. They named a number of concerns with regard to the guardianship of children which the 1964 Act did not address. “For instance, if a husband deserted his wife he may return whenever he wished however, if a woman deserted her husband, she forfeits her right to the marital home and to her access to her children.” ⁹⁹ In addition, the mother had no right to appoint a testimony guardian in her will, and on her death, the father received sole custody. ¹⁰⁰ In some cases this left children in households with abusive or neglectful fathers. In 1971, it was the father who issued the children’s passports thereby, allowing him to take them abroad without the mother’s consent. ¹⁰¹ Through the examination of newspaper articles from 1937 to 1977, there were at least fourteen cases reported of parental child abduction, where one parent took the child from the country without consent of the other. ¹⁰² This is a conservative number as many more incidents may not have been reported.

In review of the legislation, Cherish, a support group for unmarried mothers, stated in 1971 that while they welcomed the “increasing number of fathers of non-marital children who wish to be involved with their children on a regular basis, we still have opted for the situation of father’s not having automatic rights, in order to avoid the potential conflictual situation of custody or access disputes and the pressure that this could place on mothers.” ¹⁰³ Cherish believed that a change in legislation could lead to cases of unmarried mothers being denied custody of their children and potential legal battles. They did, however, support the application process outlined in the legislation for unmarried fathers and encouraged fathers to apply for guardianship. In 1996, under the Keegan case, an Irish father applied to adopt his child in the Irish courts but was denied the adoption. He brought the case to the European Court of Human Rights (ECHR) which ruled that under the European Convention, the family was not confined to marriage-based relationships and he was granted the adoption. ¹⁰⁴ The Adoption Act of 1998 outlined that the father of a child born outside of marriage must be consulted before the child is placed for adoption and therefore, has the right to apply for guardianship. ¹⁰⁵ In 1996, the Irish Constitutional Review Group noted that, many submissions “while in favour of giving rights to the natural father, point out that rights cannot be extended in absolute terms to natural fathers because, for instance, some children are born as a result of rape or casual sex.” ¹⁰⁶ The report of the Review Group concluded that “all family rights, including those of unmarried mothers or fathers and children born of unmarried parents, should now be placed in Article 41 [of the Irish Constitution].” ¹⁰⁷ It called on the acknowledgment of family regardless of marital status. As our idea of family is continually changing, and more and more parents are choosing not to marry, our constitutional recognition of the family is somewhat outdated. The Review Group stated that “this proposal would require a constitutional amendment and involve an expansion on the definition of the family” [to the Irish constitution]. ¹⁰⁸ While religion may no longer hold importance in terms of guardianship, the issue of marital status continues in terms of parental rights in Ireland today. Although Article 42.1 on the family remains unchanged giving special recognition to the married family, in most child custody cases, special efforts are made to offer “joint custody” to both parents, regardless of marital status.

Conclusion

Common law, affirmed by nineteenth century legislation, gave the married father the right to determine the religious education of his children, which led to a bias in court custody cases in favor of the father. The married father thereby held an advantage in gaining custody due to common law ruling. Nineteenth century legislation outlined that mothers found guilty of infidelity, or not abiding by sexual social norms, were in jeopardy of losing custody of her children. Restrictive legislation and common law rulings were carried through to the twentieth century. This article examines ten cases of child custody which came before the courts from 1937 to 1964 and focuses on religion in the determination of child custody in cases of mixed marriage. The 1937 constitution was influenced by the Catholic Church and therefore, was founded on a traditional ideal protecting marriage, family and traditional gender roles. From 1937 to 1964 court custody cases were largely centered around the religious education of the children. The married mother had few rights to her child’s religious education which had a major impact on custodial rights.

Unmarried parents did not have the same rights to their children as married couples and the state actively ruled against single parent families. From 1937 to 1964, there were no mechanisms in place to support an unmarried woman to keep her child. Legally she was not granted any legal right to the custody and many children of unmarried mothers were forcibly removed for adoption. Just as unmarried mothers were believed to be “immoral” and incapable of parenting alone, unmarried fatherhood was also not encouraged. In an effort to secure a two-parent family, Church and State denied parental rights to biological parents. In addition, children were removed from families due to poverty and the inability to care for them due to economic means. These children were often placed in religiously run institutions which also failed to provide adequate care for them.

This article highlights significant changes in parental rights in Ireland and exemplifies a shift in court ruling on child custody. The courts are no longer fixated on the religious education of the child, but rather their physical well-being. The Tilson case in 1950 was the first which challenged common law and influenced the introduction of the Guardianship of Infants Act in 1964, which eventually granted equal guardianship of children to married parents. While there were significant changes in legislation on paternity rights throughout the twentieth century, society moves at a greater pace than legislation as family practices and our idea of the family, continues to rapidly change.