The Queen against Maria Clarke
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1857 |
| Date | 21 January 1857 |
| Court | Court of the Queen's Bench |
English Reports Citation: 119 E.R. 1217
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 26 L. J. Q. B. 169; 3 Jur. N. S. 335. See In re Turner, 1872, 41 L. J. Q. B. 144; In re Andrews, 1873, L. R. 8 Q. B. 159; In re Ullee, 1885, 53 L. T. 713; In re Scanlan, 1888, 40 Ch. D. 212; R. v. Barnardo, [1891] 1 Q. B. 199; [1891] A. C. 388; R. v. Gyngall, [1893] 2 Q. B. 241; Thomasset v. Thomasset, [1894] P. 298. For subsequent proceedings see 1 H. & M. 420, n.
[186] the queen against maria clarke. (!n the matter of alicia race.) Wednesday, January 21st, 1857. An infant of the age of ten years being broagbt up from a school, on habeas corpus, at the instance of the mother, who was guardian for nurture, the father being dead, and there being no testamentary guardian, although it was deposed that the child was of intelligence and wished on religious grounds to remain in the school, this Court refused to examine the child and ascertain its intelligence, holding that a guardian for nurture has a legal right to the custody of the ward, irrespective of the wishes of the ward, unless it be shewn that the custody is sought for improper objects, or that the application is not bond, fide, or that the guardian making the application is grossly immoral. And, in this case, no more appearing than that the father had been a Protestant, and that the mother was a Catholic, and intended to educate the child in her own persuasion, the Court ordered the child to be given to its mother. [S. C. 26 L. J. Q. B. 169 ; 3 Jur. N. S. 335. See In re Turner, 1872, 41 L. J. Q. B. 144; In re Andrews, 1873, L. E. 8 Q. B. 159; In re Utlee, 1885, 53 L. T. 713; In reScanlan, 1888, 40 Ch. D. 212; R. v. Barwrdo, [1891] 1 Q. B. 199; [1891] A. C. 388; B. v. Gyngall, [1893] 2 Q. B. 241; Thomasset v. Thomasset, [1894] P. 298. For subsequent proceedings see 1 H. & M. 420, n.] A writ of habeas corpus ad subjiciendum, returnable at Chambers, to bring up the body of Alicia Race, an infant, issued by order of Coleridge J., on 2d January, 1857, at the instance of Alicia Race, the mother of the infant. It was addressed to Maria Clarke. The return was, that the child was placed under the care of Miss Clarke by the Commissioners of the Royal Patriotic Fund ; and that she did not detain, and never had detained, the child against its will. Crompton J,, at Chambers, referred the matter to the full Court. Affidavits on both sides were used. By these it appeared that the child was born in July, 1846, and was therefore now between the age of ten and eleven. She was the daughter of Lanman Race, a sergeant in the Marines, who fell in the action at Petropaulowski in 1854, leaving a widow and two children, this girl and a boy. In 1855, the widow and orphans were selected as objects for the bounty of the Royal Patriotic Fund. The mother received an allowance; and the children were aent to school. The rule of the Commissioners is, in general, to send children to schools conducted by per-[187]-sons of the same religious persuasion as the parents of the children. In this case the father had been a Protestant, and the mother was a Roman Catholic; the children had been baptized, and during the father's lifetime had gone to church, aa members of the Church of England. This being so, they were sent by the Commissioners to Protestant schools, with the full concurrence of the mother, who at the time stated that her late husband had been a Protestant, and that she was one of those who thought there were as good Protestants as Catholics. Subsequently, in the latter part of 1856, she sought to take away the children for the avowed purpose of having them educated as Roman Catholics. It was suggested on the affidavits that thit was really done by a priest in her name, and that the application was only colourably her's; but this was distinctly denied by her on affidavit; and the Court acted on the belief that in fact the application was really the mother's. The Commissioners of the Royal Patriotic Fund, on the application being made, took the matter into consideration, and consulted the wishes of the children. The boy was desirous of returning to his mother; and she was permitted to remove him. The girl expressed great repugnance to leaving her present achool, assigning as her reasons that, much as she loved her mother, she would not go to a school where she would be taught idolatrous worship of the Virgin and Saints. There were numerous affidavits shewing the belief of respectable persons that this wisb of the child was the unbiassed result of an intelligent religious conviction, and that she was of intelligence beyond her years. The Commissioners and Miss Clarke, the schoolmistress, refused under those circura-[188]-stances to give the girl to her mother. Thia writ was obtained K. B. XLVIII,-39 1218 THE QUEEN V. CLARKE 7 EL. * BL. 189. to compel them to do so. It appeared, by the affidavits on which it was obtained, that the father appointed no testamentary guardian, and gave no directions in his will as to the manner in which his children should be brought up. He appointed his wife sole executrix of his will in the following terms :-" I do hereby nominate, constitute, and appoint my wife Alicia Race executor of this my last will and testament, feeling confident that she will do justice to my two children as a wife and mother." The following letter, received after the husband's death, was also set out in the affidavits. "H. M. S. 'Pique,' at Sea, 25th August, 1854. " My dear Wife and Children,-I now sit down to write a few lines to you previous to going into action. When you receive this I shall be no more, as it will not be sent to you if I survive. I hope you are all quite well as I am at the present time. My dears, I write to bid you an eternal farewell, if such be God's will that I am cut off: but I trust in Providence, and hope I may be spared to meet you again : but, as we cannot all expect to survive to tell the tale, and I may be one that is doomed to die in defence of my Queen and country, therefore, my dear wife, it will be a consola tion that I died in defence of liberty, and done my best as in duty bound by my oath when I took to the profession of arms. My dear Alicia, I have made my will to you; and I trust you will carry it out according to my wish. I wish, my dear, that you will remain a widow until the children are capable of taking care of themselves. I [189] hope, my dear, that you will not disregard this my last wish, as I should not die happy if I thought a stepfather would be over my babes: but I feel confident that you will not forget ray last wish. My dear wife, I have not received any letter from you or any one else since I left England; I should feel very happy to hear from you before I am called into eternity : but the Lord's will be done. We must bow to His commands. My dear Ally, I am but ill prepared to meet my Maker face to...
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D (A Child)
...of discretion." 56 I go back to the earlier authorities. In The Queen v Maria Clarke (In the Matter of Alicia Race) (1857) 7 E & B 186, 119 ER 1217, the widowed mother of a ten-year old girl, whose father had been killed on active service during the Crimean War and whose education was being......
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J v C
...power to interfere with such custody except in very extreme cases. As Lord Campbell said in R. v. Clarke, 7 EI. & BI. 186 at 198; 119 E.R. 1217 at 1221: "There is an admitted qualification on the right of the father or guardian, if he be grossly immoral, or if he wishes to have the child fo......
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D (A Child)
...he will go, but, if he be not of that age, the court must make an order for his being placed in the proper custody.” 59 The issue in the Maria Clarke case was whether the ten year old girl's widowed mother, as her guardian for nurture, had a legal right to custody against the wishes of the ......
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Re Woolley; ex parte M276/2003 by Their Next Friend Gs
...at 214–218; Cretney and Masson, Principles of Family Law, 6th ed (1997) at 580. 187 [1970] 1 QB 357 at 372. 188 (1857) 7 El & Bl 186 [ 119 ER 1217]. 189 (1857) 7 El & Bl 186 at 193–194 [ 119 ER 1217 at 190 (1857) 7 El & Bl 186 at 195 [ 119 ER 1217 at 1220] 191 See, in particular, the Famil......