R v Gyngall
| Jurisdiction | England & Wales |
| Date | 1893 |
| Year | 1893 |
| Court | Court of Appeal |
Infant, Custody of - Parent and Child - Guardianship, Right of Parent to - Absence of Misconduct by Parent - Interference with Parental Right, Grounds for - Habeas Corpus, Jurisdiction of Court upon -
On an application by habeas corpus, by the mother, who was the legal guardian, of a female infant, aged about fifteen, for the custody of such infant:—
Held, affirming the judgment of the Queen's Bench Division, that, having by virtue of the Judicature Act, 1873, on such an application the Chancery jurisdiction with regard to the custody of infants, the Court, although the mother had not been guilty of any misconduct to disentitle her to the custody of the child, would, if satisfied that it was essential for the welfare of the child, refuse to give the mother such custody.
APPEAL from the decision of a Divisional Court (Lord Coleridge, C.J., and Lopes, L.J.) upon the return to a writ of habeas corpus, refusing to order that a child should be delivered up to the prosecutrix, her mother, and allowing her to depart from the court with the defendant.
The facts, so far as material to this report, appeared to be as follows. The defendant, in whose custody the child was before being brought up on the return, was a lady who kept a convalescent home at Weymouth, under the patronage of the Rev. Mr. and Mrs. Duckworth. The child, a female, was born at Nice, on August 25, 1878, the parents being foreigners and of the Roman Catholic faith. The child was baptized in a Roman Catholic church, and was brought up as a Roman Catholic. The father deserted the mother about the end of 1879, and was since dead. The child, while in the defendant's charge, had at the defendant's request written down her recollections as to the history of her past life, which statement was brought before the Court as an exhibit to an affidavit by the defendant and referred to in the judgments of the judges. It appeared from such statement that the child had been left by her mother at Nice, when an infant, in the charge of a woman and her husband, natives of that place, with whom she remained some years, the mother in the meantime having been in service as a lady's-maid and having gone to the United States. The mother, who was subsequently married again to a man who had been a valet, then removed the child from Nice, on which occasion the child screamed and struggled against being removed, supposing the persons with whom she had been living to be her father and mother. The child appeared to have subsequently been with the mother at various places in London and in Paris.
In 1888 the second husband died of consumption. There was evidence from the child's statement and on affidavit tending to shew that the mother was in a state of poverty, and was not in a position to support the child, who appeared to have been in delicate health. On the other hand, there were statements to the contrary effect on affidavit by the mother, detailing provisions made by her for the maintenance and clothing of the child. The Court, however, as will be seen from the judgment, came to the conclusion that the mother would probably be unable to keep the child with her if delivered up to her. In 1889 the mother was residing in Hampstead, and striving to maintain herself by taking in dressmaking. On August 8 in that year the child, being in bad health, was, through the intervention of the Rev. Mr. Davys, the vicar of the parish in which the mother resided, sent to the home kept by the defendant at Weymouth, where she stayed till September 19. During the child's stay at Weymouth she was allowed, in accordance with a previous arrangement with the mother to that effect, to go to a Roman Catholic place of worship and to read Roman Catholic religious books.
It appeared from the child's statement that she was in October, 1889, sent by her mother to a Roman Catholic convalescent home at Bournemouth, her maintenance at which was paid for by Father Gallwey, a Roman Catholic priest, and where she remained till some time in March, 1890. She stated that after that she had been at a convalescent home at Seaford for some weeks. In September, 1890, the child was, through the intervention of the Rev. Mr. Davys, again admitted to the home kept by the defendant at Weymouth, the mother herself taking her down to the home; and she remained there till April, 1891, the expenses of her maintenance there being defrayed by the Rev. Mr. Davys and Mrs. Duckworth. While there she went to a public elementary day school, presided over by Canon Stephenson, and attended by children of all denominations, including Roman Catholics. In April, 1891, the mother requested that the child might be sent back from Weymouth; but as she did not forward any money for travelling expenses the defendant did not send the child back; but ultimately a Mr. Maude came and provided for her travelling expenses, and she went back. She was then received into a convent school at Brighton. In September, 1891, the mother was seeking to obtain a situation as lady's-maid; and, having obtained an engagement to go to Paris in that capacity, she sent for the child to come from Brighton to her lodgings at Hampstead, to take leave of her before going to Paris. She then departed for Paris, leaving the child at the lodgings with the sum of seventeen shillings, out of which, according to the child's account, she was to buy boots and certain other matters, leaving a balance of six shillings. There was some dispute about the circumstances under which the child was left, the child's account being that the mother told her not to go back to Brighton till she heard from her, and that she would send more money, which she did not do; but the mother's statement being that she had arranged that the child should return to Brighton, and that one Father Clark, a Roman Catholic priest at Hampstead, should see to the child if she had not time before leaving for Paris. Father Clark came to see the child after the mother's departure, and proposed to send her to Brighton; but she refused to go there. The child then applied to the Rev. Mr. Davys, expressing her desire to go back to Weymouth, and he wrote to the mother that, unless she wrote to the contrary in course of post, he would make arrangements to send the child to Weymouth. Not hearing from the mother, he sent the child to the defendant's home again. It appeared that the child was happy and comfortable at the defendant's home, and wished to remain there; that she was highly intelligent and advanced for her age, and that she was being trained at the public elementary school at Weymouth as a pupil teacher, and was making good progress. It further appeared from her affidavit that, when she was at Hampstead, she had been to Protestant places of worship and read Protestant Bibles, and, without any influence from any one, her religious opinions had begun to change, and that she now entertained Protestant views. It will be seen that the Court came to the conclusion that there had not at any time been any proselytism, or improper influence brought to bear on the part of those who had the custody of the child, in order to induce her to change her religion. There had been a previous application to Denman, J., at chambers for a habeas corpus, when he saw and questioned the child, and came to the conclusion that it would be contrary to the child's welfare to interfere with the custody in which she then was. He therefore refused the application. A habeas corpus having been subsequently applied for by the mother, and issued by the Divisional Court, on the return thereto the judges (Lord Coleridge, C.J., and Lopes, L.J.) saw the child, and came to the same conclusion as that at which Denman, J., had arrived — viz., that it would be contrary to her welfare that she should be removed from the home at Weymouth and delivered up to the mother.
T. Terrell, for the prosecutrix. The father of this child being dead, the mother is the guardian of the child and is entitled to the custody of it:
[KAY, L.J. Those were cases of habeas corpus in a Common Law Court. Has not the Court of Chancery always exercised in the case of infants a parental jurisdiction in control of the parent's rights, where it is essential to the welfare of the infants? Now, by s. 25, sub-s. 10, of the Judicature Act, 1873, the rules of equity with regard to the custody of infants are to prevail.]
It is submitted that there is no authority to shew that the Court of Chancery has, in the absence of misconduct by the parent, exercised a general jurisdiction to interfere with his or her rights with a view to the supposed interests or welfare of the child. If the parent be guilty of misconduct, he or she may lose his or her right, and then the Court will have a discretion to act for the welfare of the child with regard to its custody. But, in the absence of anything to take away the parent's rights, it is submitted that there is no such jurisdiction. Where would be the limits of such a jurisdiction? The Court cannot surely take the child away from the parent merely because the child will be socially or physically, or even morally or religiously...
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