Barnardo v Ford. Gossage's Case

APPEAL from an order of the Court of Appeal reported as Reg. v. Barnardo, Gossage's Case^F1.

The following statement of facts is taken from the judgment of Lord Herschell:—

The appellant is the founder and director of certain institutions, comprising homes for destitute children. The respondent is the mother, by a former marriage, of a boy named Harry Gossage. In the autumn of 1888 a clergyman residing at Folkestone wrote to the appellant requesting him to receive into his home the boy, Harry Gossage, whom he had found in Folkestone destitute and homeless. The boy accordingly became an inmate of the appellant's homes. One of the officials of the homes wrote to the mother of the boy, and received a letter from her dated the 29th of September in which she said, “I shall be very pleased if you will keep my son, Harry Gossage, in Dr. Barnardo's home, as I cannot afford to keep him myself.” On the 11th of November Mr. Newdigate, a gentleman residing at Leamington but who was a stranger to the appellant, wrote a letter to him stating that Mrs. Gossage had called upon him to express her desire for a Catholic home for her boy, and informing him that St. Vincent's Home, Harrow Road, was prepared to receive him, and that he was writing to the Rev. D. Hope to arrange the transfer. On the 16th of November Mr. Hope accordingly wrote to Dr. Barnardo that he proposed sending for the boy, and inquiring what time of day he should send. Some correspondence followed between the appellant or his representatives and Mr. Newdigate in which the appellant declined to consent to the transfer of the boy to the Roman Catholic institution. On the 1st of January 1889 Mr. Newdigate enclosed a document signed by the mother expressing her desire that her son should at once be transferred by Dr. Barnardo to Mr. Hope, who had undertaken to place him in St. Vincent's Home, Harrow Road, London. The letter informed Dr. Barnardo that unless the mother's order was complied with within seven days he should instruct his solicitor to take out a writ of habeas corpus. A letter followed from Mr. Hope, which was answered on the 8th of January by the secretary of the appellant's homes in these terms: “I am instructed to inform you that it is not possible to comply with your request as the boy in question is not and has not been for a considerable time an inmate or under the control of these institutions.” On the 1st of March following the appellant was served with a summons to attend a judge of the Queen's Bench Division to shew cause why a writ of habeas corpus, commanding him to produce the body of the said Harry Gossage, should not be issued. Several affidavits were filed before the summons came on for hearing. In one filed by Dr. Barnardo he stated that before he received any application from the mother for the return of the child, he, on the 16th of November 1888, transferred him to the care of a Mr. William Norton, an American gentleman, who was at that time on a visit to this country, and that he believed that the boy was taken by Mr. Norton to Canada a few days later. He further deposed that he had not, since he handed over the boy, heard either from him or Mr. Norton, that he did not know where he or Mr. Norton was, that he had no means of communicating with either of them. He further stated that before handing over the boy he satisfied himself that Mr. Norton was a fit and proper person to have the custody of the child. In an affidavit sworn a few days subsequently he deposed that the said Harry Gossage was not then, and since the 16th of November 1888, when he transferred him to the care of Mr. Norton, had not been in his custody or power.

The summons came on for hearing before Mathew J. on the 14th of March 1889, when the learned judge, having read the affidavits filed and heard the cross-examination of the appellant, refused to order the writ to issue. No further steps were taken till the 23rd of November 1889, when a rule nisi was granted for a writ of habeas corpus by the Divisional Court of the Queen's Bench. In the meantime the case of Reg. v. Barnardo, Tye's Case^F2 had been decided in the Court of Appeal. This was a decision affirming an order of the Queen's Bench Division quashing a return to a habeas corpus and granting an attachment against the defendant for contempt.

It was in consequence of the judgments given in the Court of Appeal, which laid down that it was not an excuse for non-compliance with a writ that the defendant had parted with the custody of the child to another person if he had done so wrongfully, that the application was again made for a writ of habeas corpus in the present case. In addition to the affidavits used on the former application further affidavits were filed. For reasons appearing in the judgments it is thought unnecessary to enter upon an examination of any of the affidavits.

It will be sufficient to state that Dr. Barnardo deposed that it was on the 10th of November 1888 that he first made the acquaintance of Mr. Norton, into whose custody he delivered the boy, that Mr. Norton shewed him letters of introduction from well-known people in Canada, and stated that his object was to discover if Dr. Barnardo could place a little boy under his care, that he was anxious to find a boy who would not be interfered with by his relations, as he wished if he liked the boy to adopt him as his son. Dr. Barnardo accordingly brought five of the boys in his home to see Mr. Norton, amongst whom was Harry Gossage. After talking with him for some time Mr. Norton asked to be allowed to adopt him. Dr. Barnardo accordingly arranged that he should be ready on the 16th of November, and on that day when Mr. Norton again came to the homes he took the boy away with him. According to Dr. Barnardo's statement, Mr. Norton expressed himself as very anxious that there should not be any interference on the part of the child's relatives, and his affidavits stated that he did not know where Mr. Norton or the boy then were, nor did he know their or either of their addresses, and that he had no means of communicating with them or either of them.

After hearing argument, the Queen's Bench Division (Lord Coleridge C.J. and Bowen L.J.) made absolute the order for the issue of the writ, and this order was affirmed by the Court of Appeal (Lord Esher M.R. and Fry L.J.)^F3.

This appeal first came on for hearing before Lord Halsbury L.C. and Lords Bramwell, Herschell, Field and Hannen on the 24th of April 1891, when a preliminary objection was taken, that from an order of the High Court for the issue of a writ of habeas corpus no appeal lies to the Court of Appeal. Counsel were desired to confine their arguments to this point.