Re Fynn
| Jurisdiction | England & Wales |
| Judgment Date | 03 November 1848 |
| Date | 03 November 1848 |
| Court | High Court of Chancery |
English Reports Citation: 64 E.R. 205
HIGH COURT OF CHANCERY
S. C. 13 Jur. 483. See In re Goldsworthy, 1876, 2 Q. B. D. 82; Brown v. Collins, 1883, 25 Ch. D. 60; In re M'Grath [1892], 2 Ch. 511; [1893], 1 Ch. 143; Smart v. Smart [1892], A. C. 432; R. v. Gyngall [1893], 2 Q. B. 242.
2 DE G. & SM. 457. IN RE FYNN 205 [457] In the Matter of egbert fynn, alfred fynn and emily fynn, Infants. July 26, 27, August 3, 9, 14, 18, Nov. 3, 1848. [S. 0. 13 Jur. 483. See In re Goldsworthy, 1876, 2 Q. B. D.' 82; Brman v. Collins, ' 1883, 25 Ch. D. 60; In re M'Grath [1892], 2 Ch, 511; [1893], 1 Ch. 143; Smart v. Smart [1892], A. C 432; B. v. 6tyn$raH [1893], 2 Q. B. 242.] Before the jurisdiction of the Court to deprive a father of the guardianship of his children can be called into action, the Court must be satisfied that the father has so conducted himself, or placed himself in such a position, as to render it not merely better for the children, but essential to their safety or welfare, that the father's rights should be interfered with (except in the cases within the 2 & 3 Viet. c. 54). Although the circumstance of the children being in the custody of the mother excludes the operation of the 2 & 3 Viet. c. 54, the provisions of that Act are proper to be regarded in considering an application by her to retain such custody, and to restrain the father from interfering with it. Conduct shewing the father to be a person to whose guardianship it would be very objectionable to intrust children: Held, sufficient ground for depriving him of their custody, and for providing otherwise for their care, maintenance and education, where such a provision can, by an actual appropriation of property or otherwise, be effectually secured. But where the only security proposed was a deed of covenant of the infants' grandmother to provide for the maintenance and education of the children for her life : Held, that such conduct was not sufficient to enable the Court to interfere. This was the petition of infants named Eobert Fynn, aged four years and seven months; Alfred Fynn, aged three years and six months; and Emily Fynn, aged fourteen months, by Marian Ainsworth, their grandmother and next friend, praying for the appointment of a guardian, and that their father (the Eespondent) might be restrained from all intercourse with them, and from proceeding upon writs of habeas corpus which he had sued out to obtain possession of the children. From the petition, supported by the joint affidavit of Mrs. Ainsworth and her daughter, and other affidavits, it appeared that Mrs. Ainsworth and five daughters, of whom Mrs. Fynn was one, were in March 1841 residing at Brussels. In December 1842, while they still lived there, the Eespondent, Mr. Eobert Nicholas Fynn, the father of the infants, a member of the Irish Bar, and lieutenant in the 2d Eegiment of the West York Militia, introduced [458] himself as the late Chief Justice of Tobago, and about a month or six weeks afterwards he sent to Mrs. Ainsworth a printed book containing his speeches, which was accompanied by a letter sealed with a large official seal, on which were engraved his erest and the words " Chief Justice of Tobago." Early in January 1843 he proposed to marry one of the daughters, Miss Emily Harriet Ainsworth, representing that he had an allowance of £300 a year from his father, a highly respectable merchant in Galway (since dead). He further represented (according to the statements in the affidavits in support of the petition) that he had expectations of being appointed Judge Advocate at Malta; in confirmation of which statement he shewed a letter purporting to be written by Sir E. Peel. Upon these representations he was accepted as the s,uitor of Miss Ainsworth; and, although Mrs. Ainsworth wrote to the Defendant's father at Belfast making inquiries, respecting his property, the marriage was suffered to take place before any answer was received. A settlement was previously executed, securing £1200, part of the wife's fortune, to her separate use. On the third day after the wedding the father's answer arrived, from which it appeared that the alleged statement respecting the allowance was incorrect, the father stating that he made the Eespondent a very small allowance, with a view of forcing him into-habits of industry, and to give up folly and idleness; but that he would, in consequence of his marriage, allow him £100 a year, and provide for him by his will, if his conduct merited it; but he stated his ignorance of his son's having any appointment. With regard to the other representation made 206 IN RE FYNN 2 BE G. & SM. 459. by the Respondent, it appeared that he was gazetted in 1840 Chief Justice of Tobago, but had never gone there. Soon after the marriage Mr. Fynn borrowed £500, part of his wife's fortune, to enable him to proceed to Malta-whence, however, he soon returned, stating that, by the recent regulations, appointments were only given to the [459] people of the country. The petition and affidavits detailed at great length the move ments and circumstances of Mr. and Mrs. Fynn, and many instances of misconduct on the part of the former, which were the subjects of conflicting testimony. Among other charges made upon oath by Mrs. Fynn were the following: that he threw her on the floor of the room with her infant child, with no other provocation than her having interfered to protect her nurse, a woman nearly sixty years of age, from his own violence ; that he had no occupation whatever; that he often drank to excess, and called his wife gross and opprobrious names, which were specified in the affidavits; that when, having visited Mr. Fynn's father at Galway for some months in 1844, they removed to Dublin she remonstrated against what she thought his waste and extrava gance, and that he struck her several blows on the head and kicked her, and threw a glass, containing hot spirits and water, at her head and face, with so much violence that the glass was broken against her head, and he at the same time threatened to thrust her head into the fire. From Dublin, where the second child was born, the parties removed to Kingstown. Thence Mrs. Fynn went alone to Brussels to her mother, and Mr. Fynn proceeded to London. In November 1845 all the family went to live in Chiswick, thence removed to Porchester Street, Hyde Park; thence they went to Brighton for two months, where Mrs. Ainsworth paid £100 for the debts incurred by Mr. Fynn at that place; and they next went to Croydon for three months. Mrs. Fynn then returned to Brussels with her children, and lived with her mother there. Mr. Fynn arrived in June 1847, and stated that he had received an appointment as foreign correspondent at Turin of the Times newspaper, of £300 a year; 'but, upon an application by letter to the editor, it was stated that Mr. Fynn had received no such appointment, but that letters from him from Italy would be received, and if approved of inserted, and if inserted [460] paid for. Mrs. Fynn deposed also that, while residing at Brussels, her husband conducted himself in a most improper manner, drinking to excess, frequently abusing her, cursing and swearing, and, without provocation of any kind, calling her a " d hypocrite, a d bitch, and a liar." The Respondent's father died, having by his will bequeathed £60 per annum to the Respondent for his life, and £60 per annum to the Respondent's wife, subject to a proviso for the cesser of these annual sums, whenever the Respondent's conduct should meet with the disapprobation of. the testator's widow and of his two other sons. In July 1847 Mr. Fynn suddenly left Brussels, taking with him his two sons, then aged three years and a half and two years and a half, having pawned or sold certain articles of plate in order to enable him to do so. After having sent several letters to his wife, Mr. Fynn wrote on the 31st December 1847, from Paris, saying that Tie had pawned his gold pin and the boys' spoons to get bread; and on the following day thus:- "New Year's Day, 1848.-My dearest Wife,-In consequence of the inclosed from Scott, I am most reluctantly compelled to break my promise of not again addressing you. It appears your mother called on him to say that a visit to her would at present be unnecessary; as if I ever contemplated such, and as if Mr. Scott had not previously invited me to his hospitable board. But this conduct is only in keeping with her officious and cursed meddling all through, and makes me every morning I rise curse the hour I ever allowed you to get into her clutches. You beg of me never to mention her directly or indirectly, and yet you put it in my power to do so by allowing this interference, which has already cost me a place of £500 per annum, robbed me of my birthright, and now want to deprive me of my friends. But the vengeance of God will overtake the murderess of your father, and my [461] children will curse her to the end of time. You know I have a prison staring me hourly in the face-that my children are without even their night clothes, and haven't even a morsel to put into their mouths; and yet you-their mother-have not the feeling, the heart, to send them a farthing. This time last year I sent you presents and money to the amount of £35; 2 DE G. & SM. 462. IN RE FYNN 207 and how very gratefully you have returned the favour ! £16 would save your husband and children, whom you wrote a few days ago you wished only to save; and not one sous have you sent. Gracious God, that such unnatural hard-heartedness could exist! -above all, in a woman that professes so much for those belonging to her. I will leave Paris in spite of your cruelty on Monday evening, and on the morning of that day I shall write to Scott and Deinhard and Jordan about the woman who is the sole cause of all. I have done everything to oblige and meet your wishes-and here is my reward! I have left 68 Bue d'Anjou...
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...case, give the care and control to the parent. 15 This argument for the Appellants necessitates a review of the authorities since 1848 when In re Fynn (1848) 2 De G. and Sm. 457 was decided. This was a case in which a father was held disentitled to the custody of his infant children on ac......
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