Barnardo v McHugh; R v Barnardo
| Jurisdiction | UK Non-devolved |
| Year | 1891 |
| Court | House of Lords |
| Date | 1891 |
Practice - Appeals from Divisional Court - Habeas Corpus - Custody of Infant - Illegitimate Child - Guardianship - Rights of Mother of Illegitimate Child.
An appeal lies from an order of the Queen's Bench Division directing the issue of a writ of habeas corpus to bring before the Court an infant in order to determine who is to have the custody of and control over such infant.
In determining who is to have the custody of and control over an illegitimate child the Court in exercising its jurisdiction with a view to the benefit of the child will primarily consider the wishes of the mother.
The decision of the Court of Appeal ([
Reg. v. Nash (
By Lords Herschell and Field: The authorities do not establish the proposition that the legal rights of the mother of an illegitimate child as to its custody are the same as those of the father of a legitimate child.
APPEAL from two orders of the Court of Appeal, one as to the issue of a habeas corpus, and the other as to the appointment of a guardian, reported as Reg. v. Barnardo, Jones's CaseF1. The circumstances were as follows:—
The respondent, Margaret McHugh (formerly Roddy), was the mother of an illegitimate boy (called John James Roddy, and sometimes Jones,) by a man named Jones with whom she lived for about-twenty years. The boy was born in December 1878, baptized in a Roman Catholic church in 1880, and again baptized in a Protestant church in 1884. In 1886 the respondent married a man named McHugh. In June 1888 the boy was admitted into one of the Homes for Destitute Children, of which the appellant, Dr. Barnardo, was the founder and director under a committee, the mother signing an agreement to leave the boy under the care of the managers of the Homes to be maintained and educated for twelve years, and not to remove him during that period without their consent. In January 1890 the appellant was required, in accordance with an authority signed by the mother, to deliver the boy to a person named by her. The appellant having after some correspondence refused to do so, a rule nisi was obtained calling on him to shew cause why a writ of habeas corpus should not issue commanding him to bring up the body of the boy before the Court.
The Queen's Bench Division (Lord Coleridge C.J. and Mathew J.) after argument made this rule absolute and also made an order appointing a Mr. Walsh, a Roman Catholic, nominated by the mother, guardian of the person of the boy. Both these decisions were affirmed by the Court of Appeal (Lord Esher M.R., Lindley and Lopes L.JJ.F2). Affidavits were used in the Courts below as to the character, reputation, and religious opinions of the mother, as to her bona fides in taking these proceedings, as to the wishes and welfare of the boy, and as to all the circumstances surrounding the case, and several of the deponents were cross-examined. This evidence is referred to in some detail in the report of the decisions belowF2. For the present purpose it is enough to say that their Lordships in this House took substantially the same view of the facts as that taken by the Court of Appeal. It was admitted that the object of the mother — or those by whom she was influenced — was to have the boy brought up as a Roman Catholic; while the desire of Dr. Barnardo was to have him brought up as a Protestant.
The present appeal was against both the orders made by the court of Appeal. Upon the argument a preliminary objection was mentioned, raising the question whether an appeal lies to the Court of Appeal from an order of the High Court for the issue of a writ of habeas corpus commanding a person to bring up the body of a child in whose care he is, the point taken by the respondent being that the decision of this House in Cox v. HakesF3 applied in the case of the guardianship of an infant, and shewed that no appeal lay. That question was not argued on this appeal, a similar objection having been already argued on the 24th of April in the preceding appeal of Barnardo v. FordF4, in which their Lordships took time for consideration on the preliminary objection without hearing the merits. On the present appeal the merits were discussed irrespective of the preliminary objection, there being an order for the appointment of a guardian, to which that objection did not apply. The question of the right of appeal was dealt with by the Court of AppealF5 and also by Lord Halsbury L.C. in his judgment in the present case.
April 24, 27. Finlay Q.C. and W. Baker for the appellant:—
The main question involved in this appeal is as to the rights of the mother of an illegitimate child with respect to its guardianship. The novel doctrine seems to have been propounded that the mother's rights are on a par with those of the father of a legitimate child. There is no authority for this proposition; the cases referred to in argument before the Court of Appeal do not establish it and are in fact inconsistent with it. In the case of a bastard, no person has all the rights of a guardian: In re UlleeF6. “Neither the putative father nor the mother of an illegitimate child has the legal right of guardianship”: Macpherson on Infants, p. 67, citing R. v. Felton and, WenmanF7. That the mother has no legal right to the custody, nor to appoint a guardian, nor any absolute rights at all appears from the old authorities, e.g. R. v. HopkinsF8; where the Court restored the child to its mother, but the child was within the age of nurture and would seem to have been of very tender years. In re LloydF9 is a strong authority in favour of the appellant, the Court there refusing to compel an illegitimate child of eleven or twelve years old to live with its mother against its will. Maule J. there said, “How does the mother of an illegitimate child differ from a stranger?” Other cases relied on contrà by the respondent do not help the argument. In R. v. SoperF10 the child was restored to its mother; but it was three years old and the mother had been deprived of the child by fraud. So in R. v. MoseleyF11; see also Reg. v. CombsF12. In Reg. v. ClarkeF13 guardianship by nurture was discussed, and Lord Campbell said that it was clear that the mother of a bastard has not over it all the rights of guardian for nurture; he also pointed out that from what was said by Lord Ellenborough in R. v. HopkinsF14 it would appear that it is only while an illegitimate child is under seven that the Courts will interfere to protect the custody of the mother. In Ex parte KneeF15, cited by Jessel M.R. in Reg. v. NashF16, the mother is no doubt spoken of as “entitled to” the child, but the age is not mentioned in the report, and it may have been of tender years. But conceding that the mother may have some rights, the principal consideration is what is for the best welfare of the child. This is what has always guided Courts of Equity in determining questions of guardianship, and now all the Courts are governed by equitable rules. All the circumstances must be considered. Of her own free will the mother placed the boy with the appellant to be brought up in the Protestant faith, and bound herself by agreement for twelve years. It is too late now to change her mind and ask the Court to sanction the change: Stourton v. StourtonF17; see also Lyons v. BlenkinF18; Andrews v. SaltF19; and In re Agar-EllisF20. The affidavits shew that the mother has no real religious views: that she is acting not bonâ fide from her own impulse but influenced by others who have their own ends to serve. Under all the circumstances it is for the real welfare of the child to leave him where he is.
Murphy Q.C. and Joseph Walton (Forbes Lankester with them) for the respondent:—
The view taken by the Court of Appeal of the facts is the correct one. The authorities shew that the mother of a bastard has all the same rights as the father of a legitimate child. But it is not necessary to maintain that proposition. It is enough to shew that she has a natural right to the guardianship, unless she has...
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