Rex v. Greenhill

Rex v. Greenhill - 'u , .‘a u meimLew-f 'yv .- a. a. w...

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Unformatted text preview: 'u , .‘a u meimLew-f 'yv .- a. a. w 1:». ..-.. ‘i.’ 4- wél‘im ' 922 rm: KING 1). GREENHILL 4 so: are“ [624] THE KING against HENRIETTA Lawn“ (humans Friday, January 29m, 1836. Where a person supposed to be improperly in custody is brought up mm habeas corpus, the Court, if there appear no ground for restraint, will order that such person be at liberty to go where he pleases, and will, if necessary, give hiatus the protection of an officer in going. But, if the party he a legitimate chiieid, too young to exercise a. discretion, the legal custody is that of the father; and, if the mother has possessed herself of the child adversely to him, and hhe claims it, the Court will oblige her to deliver it up. Nor will this rule the departed from on the ground that the father has formed an adulterous connectimnn, which still continues, if it appear that he has never brought the adultress to hisis house or into contact with his children, and does not intend to do so. Sembiele, that the child would not be given into the father's custody if it appeared that agin his hands it would be exposed to cruelty or to gross corruption. [8. C. 6 N. 8.: M. 244-. Discussed R. v. Clarice; In re Race, 1857, 7 El. & Bl. 193.7. Referred to, In re Andrews, 1873, L. R. 8 Q. B. 159; R. v. Prince, 1875, L. R. 2 C..CS. 157; 171m: v. Thomaset, [1894] P. 298.] On the 23d of October 1835, Benjamin Cuffs Greenhill, Esquire, of Knowle Haiall, Somersetshire, obtained a habeas corpus, commanding his wife, Henrietta Lavinnia Greenhill, to produce the bodies of their three children before Patteson J. at hésis house. The writ was obtained on an affidavit by Mr. Greenhill, stating that bins had been residing with his said wife and children at Weymouth till the 23d of tine preceding September, or thereabouts, when Mrs. Greenhill, in his absence, left time house and went to her mother’s at Exeter, where she had ever since continued, amnd refused to return. That, after her departure, September 26th, her brother Captainin Macdonald, at her instigation, went to Weymouth, broke up Mr. Greenhill's establisiah- ment there, and, without his authority, took and conveyed the said children, femaieass, aged, respectively, five years and a half, four and a half, and two and a half, to tissue house of Mrs. Greenhill's mother at Exeter, where they had ever since been in time custody of Mrs. Greenhill, against the will of Mr. Greenhill; and that he, as theisir father, claimed the custody and possession of them as a right, which he would not win any way abuse. The children were brought to the house of the learned Judge izin obedience to the writ; but [625] their further attendance was dispensed with. ;:it being stated by Mr. Chambers, Mrs. Greenhill’s uncle, that they would be at him house in the immediate neighbourhood, and would be produced in ten minutes, whesen it became necessary. And afidavits were put in on behalf of Mrs. Greenhill, inn answer to that of her husband. She herself stated as follows:—-The permanemnt residence of Mr. and Mrs. Greenhill was Knowle Hall. Mr. Greenhill was in these habit of leaving Mrs. Greenhill for short periods. during which the children wersre under her entire controul. In the summer of 1835, Mr. Greenhill arranged thzxat they should go, with the children, to Weymouth for a month or two; and that Mrs. Greenhill and the children should proceed from thence to the house of hamr mother at Exeter, about the 1st of October. The object of the journey to Ways?- mouth was amusement and health. They arrived there about July 11th, anad occupied furnished lodgings. Mr. Greenhill had a pleasure-yacht, in which he fre=e~ guently left \Veymouth on short excursions. The last time of his leaving Mrme. reenhill there was September 7th, when he sailed for Portsmouth, after which has went to London : and on September 24th she received information as to his conduct, which rendered it necessary, in her opinion, to remove immediately, with her children, to her mother's honse at Exeter. She accordingly left Weymouth, and, on Septembexer 26th, had her children conveyed to Exeter. They remained under her care, at hex-er mother’s house, till October 27th; and she then, in obedience to the haheas corpuam. brought them to London, where they resided, with her, at the house of her uncle, 311:)“. Chambers. Mrs. Greenhill further expressed her belief that, if her husband wersre permitted to have the custody and controul [626] of the infants, their welfare enad interests would be prejudicially affected thereby ; and that her husband's mother, witixh whom it had been suggested that they might be placed, was, from circumstances whicmh the affidavit set forth as to her temper and disposition, an improper person to hawve the charge of them. Mrs. Greenhill also stated that shc had not herself done any new: which could render her unworthy or unfit to have the custody of the children; anad ‘ AILCESIL la'n‘uary 29th, urougn: up on 'll )rder that at give him imnate child, 1 father; and, h‘fi, and he I a rule be is‘_,)nne¢tion, iitress to his so. Semhle, e. ed that in 11:}; BL 197. , I» R. 2 C. C. Khowle Hall, etta Lavinia o" J. at his Ll ; that he .eLng of the ence, left the ntinued, and t‘ rCaptain l} establish- rbri, females, half, to the arLsen in the 3. y, as their deild not in 18d Judge in need with, it l( he at his ll tea, when jfieshill, in a permanent l! as in the ll ren were dodged that ); and that was of her e to VVey- y‘ ,1th, and has he fre- eaving Mrs. .2 which he i conduct, its children, n September (wre, at her i is corpus, :mecle, 3dr. isband were welfare and i :her, with .‘ sea which rh‘o'n to have ione any act ir‘ lren ; and {Lnlfitrh znm‘ 'rna KING v. GREENHILL 32.23 that her husband could at any time have, and had in fact had, access to the!!! “mum” they then were. By other adidavits it appeared that Mr. Greenhill had. duriugfuflle years 1834 and 1335, lived in continued adultery with a Mrs. Graham, Cohahuztmg with her at various lodgings in London and at Portsmouth; the intercourse scuba latter'place having been still carrried on after the arrival of Mrs Greanhiii and her children at \Veymouth; and during such cohabitation Mr. Greenhill and 1' . Graham had at times assumed the names of Mr. and Mrs. Greeulnll, and Mr. uidlfiirs. Graham; that in the month of October, in which the habeaa corpus was obtainned. they were living together under the latter names at a lodging in London ; and taint in that month he had acknowledged to Mr. Chambers, the uncle of Mrs. Grmnhill, that the adultery was still continuing, and had refused to part with Mrs. Grumman while uncertain oi a reconciliation with his wiie. There was also an aifidavit thalidr. Greenhill bad, in the same month. gone with a female to a common brothel, whence it was believed they had passed the night. Mrs. Greenhill's uncle deposed, {mandala knowledge of the “ character, disposition, and conduct " of Mr. Greenbill, that be m not, in the deponent’s opinion, a fit and proper person to have the [527] caraund custody of the children ; that, if they were entrusted to him, there was great dagger that they would not be properly educated and taken care of; and that Mrs. Greennhill was in all respects a proper person to have the care and custody of them. The grand- mother of Mrs. Greenhill deposed to the same effect, and that, if the children mm placed with their father there was great probability that they would be “brought into contact with a fema'le of an abandoned and prodigate character:” and sheuiso stated that Mr. Greeuhill’s mother was an improper person to be entrusted vitamhe children, being unkindly disposed both towards them, and thwarda Mrs. Greenhiii... After the suing out of the habeas corpus, and before its return, a petition, founded upon the above atfidavits on behalf of Mrs. Grecnhill, was presented to the Wine- Chancellor, praying that it should be referred to one of the Masters of the Contra-to report who wasa fit and proper person to be the guardian of the said iniant children...&c. The petition was heard, and dismissed, while the habeas corpus was depending hesitate Patteson J. On the 10th of November, Patteson J., after taking time for considerin- tion, ordered that Mrs. Greenhill should deliver up the children to her husband. In the then Michaelmas term, November 12th, that order was made a rule of Smart. The rule was served on Mrs. Greenhill, November 12th, and the children demd: but she refused to give them up. On the 13th a rule nisi was obtained for an atmoh- ment against Mrs. Greenhill [or her contempt. In the same term, November 173222.. \Vilde Serjt. moved, on behalf of Mrs. Greenhill, for a rule calling on Mr. Grazer:- hill to show cause why the [628] order of Patteson J. should not be set asideaand the rule, making it a rule of Court, discharged. The motion was grounded 027.11! affidavit (among others) by Mrs. Greenhill, stating, in addition to facts which. have been already mentioned, that the children had been always brought up under :her personal superintendence and care, and that, ’without her personal attention, :taeir health and comfort would suffer; that, according to her belief, the cannon between Mr. Greenhill and a female of immoral character still continued; that 2115's. Greenhill had had two interviews with him since she came to London in obedienceoto the writ, and that in neither did he pledge himself to put an end to such canoes-2mm; that, as she was informed and believed, he had taken a house for the said female tan: a term of years, and intended to reside with her permanently ; that the children were kept under no restraint, were attended by the same nurse as when they were-cat Weymouth. and had never been withheld from their father, who. on the contrary, :.nad been od'ered free access to them at all times; that Mr. Greenhill had always educated the propriety of Mrs. Greenhill’s conduct as a wife and mother; that he would :not iniorm Mrs. Greenhill how he intended to dispose of the children ; that Mrs. Grecsanhill had instituted proceedings (which were then depending) in the Ecclesiastical Couzzior a divorce and alimony, because the conduct of her husband was such that she ccould not with propriety reside longer with him, and that she believed the haheas corpuss to have been obtained for the purpose of affecting that suit; that she only desired :aer- mission to continue bestowing upon her children the same personal care and attcsiztmn which they had hitherto received from her, and which was necessary to their weal-{m}- fare; and that she had always been ready and willing, and offered, and did thenuodcr, to reside in any place, save, under present circumstances, in her husband's own laminae, and to act with respect to the said children, and their management, education. and xi 9234 me KlNG v. GREENEILL up.sz disposal, precisely as her husband might dictate. She further stated that she would consent even to relinquish the custody and controul of the children, if, by the rule or other direction of the Court. she might be assured of permission to give them her personal care and attention during their tender years. It appeared by another of the affidavits now put in, that Mrs. Greenhill's age was twenty-four and that of her husband twenty-eight. Wilde Serjt., in moving for the rule, stated the proposal of Mrs. Greenhill to be, that she should not part with the children, but that they should he placed where her husband should appoint, she having access to them for the purpose of giving them her care and attention, subject to his directions. The question raised by these pro- Ceedings is. not whether the father’s right over his children be paramount, but whether the rights of the mother are to be wholly disregarded, so that she may not claim access even to infants within the age of nurture. The law cannot require that. if a husband makes his Own house unfit for his wife’s residence, his children shall, there- fore, be deprived of the maternal care and protection. [Lord Denman C.J. Has Mrs. Greenhill gone with the children to her husband, and made the proposal you new mention, and has it been rejected'l Patteson J. All that appeared before me was, that she had left her husband's house, and the children in it; that her brother had gOne to the house and [630] brought the children away; and that Mrs. Greenhill had then gone with them to Exeter, and had’aftarwards said she would not deliver them up.] The place she left was only a lodging-house, taken for a limited time; and she went from thence to the place which her husband had appointed. [Patteson J. At any rate she went much before the time] None of the authorities go so far as to bear out the present motion. In cases where the child has been actually in the father’s possession, this Court has declined to interfere, no doubt considering its power inadequate to alter such a state of things; but those cases differ from the present; and, in a case (that of illr. Lytton (a)) where the father had bound himself by an agreement in articles of separation to allow the mother access to the child, the Court would not suffer him to take it from the school at which it had been placed, without providing for the-future access of the mother. The only instances in which the Court appears actually to have taken away the child from the mother are Sir William Murray’s mew) and Ex parte M‘Clcllan (I Dowl. P. C. 81). [Patteson J. In that case the child had been placed at a school by agreement between the father and mother; the mother persuaded the governess to let the child go to her for a few days, under a promise to restore it, and then kept it. I thought there was an absurdity in saying that, if the husband took the child by force, the Court would not remove it from his possession, and yet that it would not assist him in obtaining the possession, when he sought it by the legal course of a habeas corpus] Where he actually has the custody, [631] the power of the Court is limited ; where he has it not, the Court will exercise its discretion according to the circumstances. In Re: v. Smith (2 Stra. 982), where a boy was brought up by habeas corpus at the instance of his father, for the purpose of having him delivered over by an aunt who kept him, the Court, over-ruling Ra V. Johnson (1 Stra. 579. 2 Ld. Ray. 1333), refused to do more than order him to be delivered out of the custody of the aunt, and inform him he was at liberty to where be pleased. And in Re: v. Sir Francis Blake Delaml (3 Burr. 1434), Lord Mansfield states the law to be, that, “In cases of writs of habeas corpus directed to private persons, to bring up infants, the Court is bound, ex debito justitiie, to set the infant free from an improper restraint: but they are not bound to deliver them over to any body, nor to give them any privilege. This must be left to their discretion. according to the circumstances that shall appear before them." He then refers to the two cases in Strange, just cited, and a third, Re: v. Clarkson (1 Stra. 444), and adds, “The true rule is, that the Court are to judge upon the circumstances of the par- ticular case; and to give their directions accordingly." And, in the case then before the Court, in which a father had obtained a habeas corpus to bring up his daughter. Lord Mansfield said, that there was no reason for deliveringher to her father, and the order was that she should be discharged from all restraint, and be at liberty to go where she would. In 12:9: v. Wilson (see p. 645, note (a), post), which came before this Court in 1829, on the application of a father, the Court referred m (a) Cited in [far v. De .llannn‘ille, 5 East 222. (b) lbid- 223. y "was.ifi,,‘,m:;g,.cnm«.twe; Home»; steerstehieaeww‘wsmmw «as ,.,._‘,,,W,.\M:M’ hwq'a‘p .“Wwa’mmsmtwt: a.» 90.33.00- at bat aha \lmllii .wby the rule or to give them her by another of the a; of her husband .Cfl‘eenhill to be, placed where her cl '5 giving them eel by these pro- olwt, but whether e may not claim require that. if a Cll n shall, there- ai 3d. Has Mrs. L.“ roposal you n0w i before me was, t ' brother had it Are. Greenhiil vossd not deliver a limited time; :ed. [Patteson J. e: go so far as to tuaily in the idgring its pewer "om the present; d’ himself by an q ld, the Court l LPwaced, without which the Court are Sir William nl . In that case if,“ and mother; 3w days, under a iurdity in saying e'it from his sq iion, when he he the custody, urt will exercise a 982), where a r: no purpose of e,___;uling Ra v. order him to be at liberty to go 1434), Lord r'1 s directed to st‘ft‘im, to set the liver them over t" it discretion, ii refers to the Les-1), and adds, aces of the par- was then before .1 his daughter, h«tr father, and he at liberty to it), which came f‘ourt referred L.” - . . «not- 3% Sr ,al-.a..¢www'~ GAIL. Essa. THE KING v. GREENBILL 925 it to the Master to see what was :proper as to the [532] custody; and, in: Re: w. Dobbins (see p. 644, note (a), post), the Court refused to let the father have the custody}? of the infant. The object of the writ of habeas corpus is the liberty of the W detained; and the application ought properly to come from him. [fez v. PM: (6 T. if. 497), Re: v. Edwards (7 T. R. 745); though, where the party himseif is off too tender years to decide upon the custody in which he ought to be, the has! vests the discretion on that subject in the father. But, where he attempts to use than discretion, not in truth for the purpose of enforcing his own rights, but to take away these of the mother, the children being within the age of nurture, and no reason being: shewn for abridging the mother’s rights, the Court will at least interpoae m Ear as ttn leave the father such a qualified dominion only, as the circumstances require. and as: may be consistent with the interests of the children themselves. The whole questimn is, whether the case be one in which the Court can use its discretion; anti whether!- the rights of the husband he so far paramount to those of the wife, that she has nu) right to stand before the Court enforcing any claim. A rule nisi was grantcri. In opposition to the rule, affidavits were put in on behalf of Mr. GreenhiflL to thus following effect :—-Mr. Greenhill's solicitor, Mr. Browne, swore that, before the issuing of the habeas corpus, he had gone to Mrs. Greenhill. at Exeter, with Mr. Greenhiillm sanction, for the purpose of effecting a reconciliation or arrangement, which, however, he had been unable to bring about, and had ultimately demanded, while a; Exetesr, that the children should‘be placed under his protection to be taken to Know}: Hun; that Mrs. Greenhill refused [633] this, and the habeas corpus afterwards issmsd : than: Mr. Greenhill, in his communications with the deponent, had evinced great affection" to the children, and that they, in an interview which the deponeut had wide between them and their father, had shown a strong attachment to him: than upmn the service of the rule of Court of November 10th, for the delivery ofrthe. chiidrmn by Mrs. Greenhill, she had refused to give them up, and expressed her detorminatémn not to live again in the same house with her husband: and that she had asked hiim what he meant to do with the children, to which he had replied that he sizmnid mitts them to Knowle, and that she might see them whenever she pleased. Mr. Greenhiili, by another affidavit, denied that any arrangement had been made with his museum for Mrs. Greenhill to go from Weymouth to Exeter. He further stated that. in this beginning of October last, when informed of his wife’s reasons for leaving Weymoutth, he had expressed to her brother and uncle his contrition for what had said had offered, if she would forgive him, to live with her wherever she wished, and "to give up his intimacy with Mrs. Graham, and that he had made other attempts sat reconciliation, without success. That the children, if taken out of his custody, wonii'd lose materially by family arrangements, which, to his knowledge and beiiiei, womid essentially affect their future interests: that his wife had no means of smpportzmg them; that the children, if separated from him, would, as he believed, he brought up in detestation of him; and that his mother was a very proper person to be entrusted with them: that he had (before Mr. Browne went to Exeter) proposed; :0 hires. Greenhill’s attorney that she should leave her mother's house and [634] l‘ve some where in or near London, in which case he had offered that she might have ttne children under her care, but this had not been acceded to: that he never contzmpiuesd for a moment depriving his wife of the privilege she had, as a mother, of seeing children, and bad repeatedly expressed himself to her to that effect: chat Graham had never seen either of the children or Mrs. Greenhill, nor had he ewer taken either of the children near Mrs. Graham’s residence, or Mrs. Graham has Knuwvle Hall or any other place where his children or wife were, nor had be entertained :the thought of bringing his children or wife in contact with Mrs. Graham, havin:g aiweays loved his children, and been loved by them, with the warmest affection: and that. he had never given his wife occasion to complain of any unkindness or want of? afieczuon in him towards them: that it was his intention to take them to Knowle. his mwn residence, where he proposed they should reside under the care of his mother, and Where he had always been ready and willing that his wife should have free accesm to them, as be had frequently told her. Upon thcso affidavits, Talfourrl Serj'. in nine same Michaclmss term (November 24th), was partly heard in opposition to) toe mic; but, the Court suggesting that some agreement might perhaps be come :m. Lhe rmle was enlarged to this term. From affidavits subsequently sworn by, and om oenaiff of, Mr. Urcenhill, it appeared that Mrs. Greenbill had left Mr. Chamliers’s boume with :the L35 THE KING 1:. UKEL‘NHXLL s.t.D..zE...‘.L.. ‘children ; that Mr. Greenhill had since made unsuccessful attempts to discover \vhccre they were, and that. from information he had obtained, he believed that Mrs. Greenciiil had taken them with her out of the kingdom. [635] Sir John Campbell Attorney-General. Talfourd Serjt. and W’ightman, now sheweo cause against the rule for setting aside the order of Pattcson J. The arguments urged against the rule in this and the preceding term were ass follows :—The legal power over infant children is in the father, the mother has nonee; l Bla. Comm. 453. It has been held, in the case of removal of paupers, that a bastard child, within the age of nurture, is not to be separated from the mother (a); but Razz v. De .Hnnnemils (5 But, 2'21). shows that the principle of that ruling does not extennd to the case of legitimate children, and that the custody of them belongs to the fathecr. The doctrine of that case was recognised in Ex parte M'Clcllan (l Dowl. P. C. 811.), and in 52 parts Skinner-(d), where Best C.J. (at the Bar) having, as referee, them made an order. by consent of the parents, that the child should be placed withaa third person, and the father having taken it from that person, the Court of Commonn Pleas held that they had no authority to interfere. In the cases which have been!) cited, of Re: v. Smilli (2 Stra. 982), and Rex v. Sir I". B. Delaval (3 Burr. 14344), where the Court refused to do more than set the infants free from restraint, they were of suificient age to exercise a choice as to the hands in which they should bee: and. in the letter case, the Court, at the time of discharging the infant, suspected thee father of being party to a conspiracy against her. In Re: v. Johnm (1 Stra. 57149. 2 Ld. Raym. l333), the reason assigned for delivering the child to the guardian appointed by her father was, that she was [636] too young to judge for herse'nif. , Blissd's case (Lofi't’s Rep. 748), is the only one reported, in which the Court has directly taken upon itself to Over-rule the father’s claim where the infant was moo young to form a choice. In Ex parte Skinner (9 B. Moore, 278), Best C.J., aftser observing that the Court of King’s Bench, on applications of this kind, generaliiy “ refer the parties to a Master in Chancery, who may ascertain whether there hoe sufficient property to provide for the support of the child, or whether it might “she made a ward of that Court, or he might appoint a guardian to take care of it,” adda's, “But the Court of Chancery has a jurisdiction as representing the King as Parsons Patriaa,'and that Court may accordingly, under circumstances, control the right of ea father to the possession of his child, and appoint a proper person to watch over in: morals, and see that it receive proper instruction and education." Here no grounnd exists for such an interference. It cannot be contended that any unkindness is to the feared on the father’s part. The power of separating children from the father can account of immorality in him, lies in the Court of Chancery, for reasons which are discussed by Lord Eldon in IVellesley v. The Duke of Beaufort (2 Russ. Rep. 1). Boat, supposing that such a jurisdiction could be exercised by this Court, there is nno ground for coming to a different conclusion from that which the Vice-Chancellor has: arrived at in the present case on the same statement of facts. In Wellesley v. 22716 Duke of Beaufort (2 Russ. Rap. 1), (which however goes beyond any previous cases), very gross misconduct was imputed to the‘ father; he had harboured an sdultereaas [637] in his own residence; and the separation between him and his children heed originally begun with his own deliberate consent. Here, the adulteress has neveer been brought to the father’s house, nor into contact with the children; and. in succh a case, adultery is not a sufficient ground for separating the children from thaeir father; Ball v. Ball (2 Sim. 35). Nor was there in the present case any consent boy Mr. Greenhill to a removal of the infants out of his control. Assuming that Mira. Greenhill's journey to Exeter was conformable to'a previous arrangement with himn (which is not admitted), he had consented only to their going there on a visit, not no their being altogether withdrawn. Sir W. W. Follett and J. Henderson, contra. It is not contended that this Court should assume the power of the Lord Chancellor to separate children from theeir father, on the ground of immorality in him. But, they being in the mother’s custodsry, and of a tender age, the Court will hesitate to enforce an order, the effect of whicch must be, not only that they shall be delivered to the father, but that the mothesr (a) See Rex v. Hendington, Cald. 6. Note to Simpson v. Johnson, 1 Doug..-9, and Ex: parts Ann Knee, 1 New Rep. 148. (d) 9 B. Moore, 278, where many cases on the subject are referred to. WMM.~.MW--» I . . -. -. I I. ‘ .W-.- .- .._. -...._.---,...... GAD.BL& is ver whore Aha-r Greenhiil igh tman, n0w {Lin were as her has none; ,hat a bastard ‘( ; but Ra: e: not extend fifths father. wl. P. C. Si). rf‘éree, then )ll ed with a “ti; Common 2h have been Burr. 1434), e: aim, they av hould be: shs‘pectad the (l Stra. 579. t" guardian l 1r herself. amCourt has ifant was too st C.J., after in generally .h‘g' there be ‘ it” might be a of it,” adds, of as Parens it right of a mesh over its 'e no ground iness is to be father on i which are #71). But, , there is no ll"! icellor has icy v. The ‘é-v-rous case), an adulteress children had a" has never Ltd, in such n from their y consent by 1; that Mrs. e with him L‘Wsit, not to sf this Court ll rom their 1L3 custody, 'ect of which .‘Lhe mother Doug. 9, K4 ‘ mm-‘w p-——‘——-I—-—-——-———--—————-_~.'—u —-—-—-——-——.—-—~a——-- a. 4 an. am we awe v. GREENHILL 9:57 shall have no means of superintending, or even of insisting upon access to them. For in Bell v. Ball (2 Sim. 35), the Vice'Chanceilor did not even grant an order that tine mother should have “ access to her daughter at all convenient times." No preceth has been cited in support of the exercise of authority required by Mr. Greeiihiill. The general proposition, that the father has a right to the custody of his children, is not disputed on the part of Mrs. Greenhill; nor is it contended that the mothssr can [638] apply for a habeas corpus to take the children from the father: but tine question. here is, the children being out of his hands, what order the Court will makes, if any, for their being delivered to one party or another. The earliest case hearing on this subject is Rec v. Clarkson (1 Stra. 444), where a party assuming to he tins husband of a female obtained a habeas corpus for the purpose of having her delivered to him ; but the Court would interfere no further than to see that she was under mo restraint, and was not intercepted in returning to her gusrdian’s house, whence sine had come. The subsequent cases as to children, Re: v. Johnson (1 Stra. 579. 2 Lad. Raym. 1333), Re: v. Smith (2 Stra. 982). Rex v. Sir F. B. Delano! (3 Burr. 14344), shew that the Court is at least not bound to make the order which it is new sought to enforce, at a father's instance, but will exercise a discretion, according to tune circumstances. Without controverting the doctrine laid down in Re: v. De Huntsville (5 East, 2‘21), it is sufficient to say that the case is no authority for the present erase-r. - In Ex parte M‘Clellan (g) the application was for the purpose of restoring a child, amt indeed to the father himself, but to a school-mistress with whom he had placed has, and from whom she had been surreptitiously taken by the mother. That case mereeiy shews that the Court will restore a child improperly taken from under the fathezrh control ; and there no such difficulty appeared, as in the present instance, respecting the mother's access. Ex parte Skinner (9 B. Moore, 278), and Ball v. Ball (2 Sim. Rep. 35), were cases in which the father had the actual controul over the child, said the mother sought [639] to interfere with that controul. In the cases of illegitimate children. Ra: v. Sayer (5 T. R. 278), Re: v. Equities (7 East, 579), it has been hseid that they ought to be in the mother’s custody during the time of nurture. The coon— siderations admitted in those cases ought to weigh with the Court in the case nf legitimate children, where the mother actually has themgin her care, and where itI‘is the father's fault that they cannot be with both parents. If the Court think that the order of Patteson J. is one which a Judge was not bound to make, they will amt uphold it under the circumstances. Mrs. Greenhill is willing toabide by any directxmn of the Court which may leave her access to the children. [Lord Denman C.J. 'Ihhe children are not in Court; nor have we any certainty that the order we might make would be complied with] Their presence is not necessary for the purpoae of. trails application ; but the order would be obeyed. Lord Denman C.J. As, unfortunately, the attempts to reconcile the interests of these parties have failed, we are bound to pronounce our judgment upon the 3E1le- tion before us. There is, in the first place, no doubt that, when a father has fine custody of his children, he is not to be deprived of it except under particular circumstances; and those do not occur in this case; for, although misconduct; is imputed to Mr. Greenhill, there is nothing proved against him which has ever bee-en held suflicient ground for removing children from their father. If we look stricctly at the evidence, this will, I think, he found a case falling within the general mile just stated, with respect to the custody, for, when [640] the children were in a lime rented by the father, and in the charge of those with whom he had appointed that they should be. the mother’s conduct in causing them to be removed was equivaisent to taking them out of his custody: and, if so, then, ex concessis, he has a right: to claim that they shall be restored. But I think that the case ought to be decided on more general grounds ; because any doubts left on the minds of the public as to :the right to claim the custody of children might lead to dreadful disputes, and eaven endanger the lives of persons at the most helpless age. When an infant is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Cmrt leaves him to elect where he will go. If he he not of that age, and a. wax-at of direction would only expose him to dangers or seductions, the Court must makee an order for his being placed in the proper custody. The only question then is, what is to be considered the proper custody; and that undoubtedly is the custody of :the (g) 1 Dowl. P. C. :51; and see ; G30, ante. 9‘33 use amo v. GREENEXLL macaw. father. The Court- bu. it is true, intimated that the right of the fathcr would be acted upon where the enforcement of it would he attended wit child ; u where there was an apprehension of cruelty, :not b danger to .the or of contamination by some exhibition of gross protligscy. But here it is impossible to say that such dannzer- exists. Although there is an illicit. connecxion between Mr. Greenhill and .‘iMrs. Graham. it is not pretended that she is keeping the house to which the children are to he brought, or that there is anything in the conduct of the parties so ot‘l'ensivee to decency as to render it improper that the children should he left under the controoi of their father. And he promises the same conduct with respect to them for the futnnre. The pre~[641]-sent rule was not granted because the Court entertained much dounbt, but from a desire to avoid increasing the misfortunes of this family. It may be tithes a modified order. if we made it, would be obeyed by Mrs. Greenhill; but [do nnot feel that we should be justified in making such an order: and, the question noow being whether or not the order of my brother Patteson should be obeyed, I sun: :of opinion that. this rule must be discharged. Littledale J. I am of the same opinion. The practice in such cases is that, if tthe children be of a proper age. the Court gives them their election as to the custodyj".in which they will be; if not, the Court takes care that they be delivered into the propeer custody. If this were a case in which the father and mother disagreed as to the disposal of the children, and they were brought from a distant place in the chargeemf some other person, and each of the parents appeared before the Court, and claimed the custody, there is no doubt that the Court would give it to the father; the mothecr's application would not be attended to. Here the case is stronger; the children wears, in effect, in the custody of the father, in a place selected by him; they have heeen remmred, and he only seeks to bring them back. On the question which comes befoore us, whether or not the learned Judge’s order should be set aside, I think we have bears no right (and I do not say that we should have it in any case) to make an order aboout access to the children or interference with them. We can only discharge the rule. [642] Williams J. In this case, as it came before my brother Patteson, he was bound to decide, in point of law, with whom the custody of the children should has. In general, where the party brought up by habeas corpus is competent to exercise»: a discretion on this point, the Court merely takes care that the option shall he left frees. In Bezv. Sir F. B. Ddaval (3 Burr. 1434), the party was of such an age; and thee Court acted accordingly. But where the age is not such as to allow the exercise cof a discretion, and there is a controversy as to the custody, the Court must decide; sand here the learned Judge, having no doubt of the law (and I accede to his view of int), made the order in question. giving the custody to the father. Then is there may thing shewn which can induce us to suspend or set aside that order? It has beean held (b) that the fact of a father having formed an improper connection is not of itseeif suficient reason for separating his children from him. The same question was befoore my brother Patteson, and is now before us for reconsideration. The right is in time father, and must take effect. Coleridge J. The single question before the Court is, whether or not this ordeer shall be discharged. It is important to consider the circumstances under which thee order was made. A habeas corpus issued, and was obeyed. The mother and children were before the learned Judge ; but it was then arranged that, during the future attenud- ance, the children’s presence should be dispensed with. There was not, therefore, sorry thing special in the order ultimately made; it was only what the learned Judgge might have said Verbally to the father if We children had been in attendance with thee mother, " You are entitled to the custody of these children." The rule, them, is to bee considered upon porely legal principles. A habeas corpus proceeds on the fact of an illegal restraint. hen the writ is obeyed, and the party brought up is capable cof using a discretion, the rule is simple. and disposes of many cases, namely, that thee individual who has been under the restraint is declared- at liberty ' even direct that the party shall be attended home by effectual. But, where the person is too young to have a choice, we must refer too legal principles to see who is entitled to the custody, because the law presumes thsat. where the legal custody is. no restraint exists: and, where the child is in the hands oof a third person, that presumption is in favour of the father. But, although the fires: (1)) Ball v. Ball, ‘2 Sim. 35. 3 Ch AD. a F. 611. w lid not us...to the ‘l by some ic'n danger d Mrs. ii, 'en are Wrisive to l control of ti future. u: doubt, 13‘7wa that t Ido not es'ion now d am of LVA4 :hat, if the custody in t' proper to the ermarge of mi claimed 3r mother’s la n were, wve been )mes before 3 have here )i it about h rule. ohrhe was - should be. ""‘ercise a )6 aft free. almand the exercise of lecide.; and w r of it), i, ere any It’nas been not of itself i a before "c‘ is in the He. t this order ' which the n children tiL A: attend- arEiore, any rned Judge id with the |€ i! (20 b8 3%{4 of an capable of in that the a: corn will {who order ist refer to homes that, l} hands of ii the first Jr U‘ “' presumption is that the right custody it be shewu that cruelty or corruption is to be apprehended from the father, acountsrr- presumption arises: that, however, is not raised here. us, is the same as if the parties, with the children, were on the rloor of the Court, amid a me am ma KING v. GREENEILL 911933 according to law is also the free custody, yet. {if The case, as it comes beioree we had to pronounce what was the rightful custody. The rule, therefore, must bee discharged. Rule discharged. [644] The Attorney-General then moved that the rule for an attachment might bee made absolute; and, no argument being offered in opposition, The rule was made absolute; but it was ordered that the attachment should lie inn the office for a month (a). ___________________——————-———— (a) The reporters are indebted to Mr. Dealtry for the following notes of two ceases referred to in the argument of Wilde Ssrjt., ante, pages 631, 632. The King against Dobbyn. A father claiming from his wife the custody of them:- legitimate infant child on habeas corpus, the Court, on a representation by the wince of his prodigacy and cruelty, referred it to a barrister to determine as to the propeer custody for the child. the wife (who was in contempt for disobeying the writ), sand the husband, consenting to abide by such determination. In Michaelmas vacation, 1817, Lord Ellenborough issued I. summons, at time instance of \Villiam Aughstus Dobbyn, calling upon Maria Philippa Dohbyn, his wife's, to shew cause why a writ of habeas corpus should not issue to bring before him tune body of Philippa Dobbyn, their daughter, aged six years, for the purpose of her being delivered over to the father. The summons was attended before Mr. Justice Holmycd, who ordered the writ to issue. The defendant having neglected to make any return to the writ, Lord Ellenborouggh issued his warrant pursuant to the statute 56 G. 3, c. 100, to apprehend the deieen- dant, in order that she might find bail for her appearance in the Court of Kinrrg's Bench on the first day of the following Hilary term, to answer the contempt. Stine was apprehended under the warrant, and entered into a recognisance to appear accordingly. On the first day of Hilary term she appeared in Court, and was asked whether sshe would undertake to appear before a Judge at chambers, and bring the said Philipppa Dobbyn with her, which she declined to do; whereupon she was examined upoon interrogatories, and reported in contempt. The reasons alleged by her for not givirmg up the child were, that the time of the father was principally devoted to the gaming table and the society of women of infamous character; that be, having attempted. :the life of the defendant, was likely to do the same to the child; and that he was oci a brutal disposition; that he had best defendant with a stick, and desired the woman with whom she lived to turn her out of doors, declaring she was not his wife, but..;his discarded mistress; that on one occasion, on his returning from the gaming tablee in a dreadful temper, he accused the defendant of inconstancy; she protested. East innocence, but nevertheless be nearly strangled the defendant, and inflicted on :her several violent blows, and exclaimed, “she was dead, he had murdered her;” ttnat she exhibited articles of the peace against him, [645] and he was bound over to kasep the peace, in 20001.; that he endeavoured to procure a divorce, but could not succeesd, though she did—not oppose it; that, although he could see the child whenever: he wished it, he had only sent for her twice within the last three years and a half, when she was immediately sent; that she believed his only motive in claiming the chiidwn a wish to give her, Mrs. Dobbyn, pain, and not affection to the child. Easter term, l818. The defendant was examined upon interrogatories, mud reported in contempt. By consent, sentence was poatponed till the next term. aAnd it was referred to Mr. Taunton to determine in whose custody Philippa Doohbyn should he placed, or remain for the present to abide his further order. And it1'was also referred to Mr. Taunton to inquire into all matters in difference between: the prosecutor and the defendant, touching the said Philippa Dobhyn, and to determine in whose custody the said Philippa Dobbyn should be permanently placed, sued to regulate the access to be had by the prosecutor and defendant to the said Phiiiiippa Dobbyn. if he should adjudge it proper that both parents should have such success. K. B. xa—so ...
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Rex v. Greenhill - 'u , .‘a u meimLew-f 'yv .- a. a. w...

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