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THE LAW RELATING TO THE MARRIED FAMILY IN IRELAND
Courts exist to vindicate the rights of the citizens. The Family Courts exist to interpret and implement legislation in such a way as to vindicate the rights of the Married Family. The rights of the Married Family exist in Natural Law, in Common Law, in statute and Constitutional Law and enshrine the presumption that a child's welfare requires the making of a relief order that vindicates the child's rights to be in the society of both their Married parents. (see Articles 41 and 42 of Bunreacht Na hÉireann; see Finlay C J in re: J H an infant, [1984 Nos 86, 322 and 399 Sp.]) It is accepted as a matter of public policy that it is in the interests of a child's welfare and development to foster a close relationship between a child of a Marriage and both of that child's parents. The Guardianship of Infants Act, 1964 gives statutory effect to the Constitutional principles established in the Tilson case of 1951 - that the Married parents of a child are required to act JOINTLY and where an agreement has been made neither parent has the unilateral authority to rescind that agreement. (See Guardianship of Infants Act, 1964 [as passed by both Houses of the Oireachtas]; see In the matter of Tilson, Infants, Supreme Court 1950) Unless there are public concerns for the children's welfare there is a presumption that the children's best interests will be found within the institution of the Married Family and questions regarding the education and welfare of the children remain, a PRIVATE matter between the parents. (This is the basis for the application of the 'in-camera' rule) Section 11(1) of the Guardianship of Infants Act, 1964 provides a broad remedy where there is a disagreement between the parents on a matter of welfare. Either parent, as Guardian, may seek a relief order and the Court may grant that relief order if it considers that the disagreement will be resolved, to the benefit of the children, by their proposal. Decisions and practice of the Court must include legal safeguards that establish that the State will act in a manner to render possible, as from the moment of birth, the child's integration into the Constitutional Married Family. The essential element of any order concerning the general upbringing of the children of a Marriage is that it is interlocutory. It must anticipate and allow for the fact that at any time in the future the children's welfare could very well involve the transfer of day to day care and control from one parent to the other and this can only be be effected, without undue disturbance to the child if, at all times, the children have adequate access to both parents. For both parents to be in a position to be able to provide for their children's education and welfare it requires that the children respect the authority of both parents individually over them. The court must therefore be mindful in regulating the general upbringing of the children by the making of a Custody and Access Order that the resultant arrangement does not evoke in the children's minds the notion that one parent has authority and the other parent is in any way a lesser authority over them and so does not need to be respected. The court must also be mindful that the order does not lead to a situation where the assets of the family are allocated in such a way as to be so unbalanced that one of the parents becomes disadvantaged to the point that they are unable to maintain a home or sustain themselves. (see Bunreacht Na hÉireann, Article 41.1.2, page 2) In circumstances where a question of welfare has arisen as a result of one of the parents having acted beyond their authority, i.e. unilaterally and in opposition to the other parent's wishes, the Constitutional principles that were established in Tilson come into play. The court must show favour to a parent who approaches the court seeking a civilised solution to a problem that would not have arisen if their spouse had not acted improperly. Conversely, the errant parent, in such circumstances, is not at liberty to seek a retrospective relief so as to legitimise their actions. The law requires Guardians in a Married Family to act jointly and a court can not undermine the law by indulging parents who act unilaterally. The Guardianship of Infants Act, 1964 must be interpreted lawfully and therefore it must be assumed it is intended to assist the Family to function better as a unit where there are differences between the parents. IT IS NOT INTENDED TO ASSIST A PARENT WHO IS SEEKING TO ACT UNILATERALLY. The court is duty-bound to show favour to a reasonable parent who is seeking to reconcile the differences and bring the Family closer to functioning as a unit. In acting autonomously without the joint-authority of a spouse or the authority of a Court Order, an errant parent effectively loses any credibility to claim that they had the children's welfare at heart. (see Ó Dálaigh C. J. and Walsh J. in B. v B. Supreme Court, 1975) It is contrary to the Natural Law, Common Law and Constitutional spirit of the legislation to allow a parent to seek retrospective relief for their actions where they have consistently acted unilaterally and without the joint-authority of their spouse. Any agreement jointly made between Married parents as Guardians of their children concerning the periods of time which either of them should devote to earning an income for the Family and the periods of time either of them should devote to duties in the Family Home can not be considered as permanent and immutable. In the modern world these decisions must be, in order to be able to deal with any contingency, open to variation at any time and are dependent on the many factors that affect the Family, both internally and externally. Furthermore, the priority that parents agree to allot at any given time to the acquisition of wealth for the Family, is merely one of many elements involved in the general decision-making process brought to bear on the matter of the upbringing of the children. The children's welfare may at any future time, in a society based on Equality such as ours, require that either or both of the parents spend more or less time with the children and more or less time in paid employment. Similarly the earning potential of either parent may vary at any given time. It is the responsibility of the parents as Guardians Jointly to negotiate and agree on the best balance to be reached in these affairs during the course of their children's upbringing. Where a parent has been proven to have deserted their Family, or behaved so badly that no rational reasonable person would expect the other spouse to live with them, the innocent spouse is entitled to make a claim against the errant spouse. Where no such misconduct has been proven any claim of entitlement to maintenance payments by a parent of minor children amounts to an unlawful unilateral decision by that parent to become the Dependant of the other parent. They are, in effect, making a declaration of their intention to become a full-time permanent burden on the family income and are demonstrating that they are not and will not be prepared to provide support, including by way of earning an income, for the Family where the children's welfare might require it. Such a parent is unilaterally abdicating the joint responsibility that they legally must share with the other spouse. They are also stating, "I want to deprive the children of my spouse's ability to provide for their religious and moral, intellectual, physical and social education and instead I want to force my spouse to go out to work to earn money for my own personal disposal". Thus, in this case and in cases of genuine desertion, the innocent parent is left as the sole acting Custodian and Guardian and it is incumbent on the court and the organs of the state to give every support to this remaining Guardian and their children. In the circumstances where a Court has not heard all the evidence and a full hearing is pending and is awaiting the assistance of Expert Reports, and in the absence of any compelling evidence which showed that the children's moral or physical welfare was at risk, and if the Court believes it is necessary to put in place an interim injunction, it is obliged in doing so, to respect the Constitutional rights of both the parents and their children. It must therefore ensure that they enjoy the society of both their parents in the interim. In making an interim Custody order a Judge is outside his Jurisdiction as defined by the "Kindersley Rules" if he had not carried out a circumspect inquisition into the matter in hand and so was not judiciously satisfied that the children's welfare required him to act in opposition to the parent that brought the concerns for the children's welfare to the Court. (see Kindersley Rules from In re Kindersely, Supreme Court, 1943; see Sidebar to Section 3 of Guardianship of Infants Act, 1964 as passed; see Walsh J. in B. v B.; see In re Frost Infants, Sullivan C. J. Supreme Court, 1945)
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