Re Connor

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 20 June 1919
• Date: 20 June 1919

In re Connor.

In re CONNOR, an Infant

Appeal.

Infant - Custody - Illegitimate child - Dead mother's wishes - Welfare of child.

In the case of the father of a legitimate child, if he has not waived or forfeited his right by conduct, the Courts will allow his wishes to control the faith of the child, even after his death; but in the case of the mother of an illegitimate child, will only allow her wishes to control the faith of the child so long as she is living and her obligation to support the child remains.

Where the special facts nullify or negative the application of any rule of law or practice compelling the Court to yield to the wishes of a parent as to the religion of a child, the Court is bound to pay regard solely to the welfare of the child.

On the 6th April, 1911, M. C., a woman in humble circumstances, gave birth in a workhouse to an illegitimate daughter, who was baptized in accordance with the rites of the Roman Catholic Church, of which the mother was a member. On leaving the workhouse the mother and infant came to reside, at first as lodgers, in the house of S. and his wife, who were members of the Church of Ireland, and who carried on the business of stationers and newsagents, S. being also a teacher of music. The mother's health shortly afterwards broke down, and from that time to the date of her death on the 5th July, 1918, she and her child were voluntarily supported by S. and his wife. In the month of November, 1912, M. C. was received into the Church of Ireland, and her infant was at the same time baptized in that faith. Until a few hours before her death, M. C. remained a professing adherent of the Church of Ireland, and her child was brought up in the same faith; but on her death-bed the mother was visited by a priest of the Roman Catholic faith, who received her back into that Church, and who stated that she then expressed her earnest desire that her child should be brought up a Roman Catholic. S. and his wife were willing and anxious to adopt the child as their own. On the death of M. C. an application was brought by her mother R. C., who was also in very humble circumstances, seeking to be appointed as guardian of the child, and that the latter should be brought up in the communion and doctrines of the Roman Catholic Church. This application was refused by the Master of the Rolls, whereupon R. C. appealed to the Court of Appeal, an application being then made that a certain lady of position should be appointed as guardian of the infant, and the infant be sent to an institution to be brought up as a Roman Catholic.

Held, by the majority of the Court of Appeal (the Lord Chancellor and Ronan L.J., O'Connor L.J. dissenting), affirming the judgment of the Master of the Rolls, that the application should be refused, and that the infant should be allowed to remain in the care of S. and his wife.

This was an application for the appointment of the maternal grandmother of an illegitimate infant as its guardian, and also for an order that the infant should be brought up in the communion and doctrines of the Roman Catholic Church.

The facts were briefly as follows:—The mother gave birth to an illegitimate child on the 26th April, 1911. Within a few months after the event both mother and child were received into the house of a Mr. and Mrs. Strong, who kept a lodging-house at 32 Charlotte Street, Dublin, rented at £32 per annum, and, except for the space of a couple of months in the year 1918, continued to live with them till the mother's death, which took place on the 5th July, 1918. The mother had been brought up a Roman Catholic, and the child had been baptized a Roman Catholic. In November, 1912, being then living with Mr. and Mrs. Strong, the mother became a Protestant, and was received into the communion of the Church of Ireland at the Mission Church, Townsend Street, and the child was again baptized, this time as a Protestant. From the date of her reception into the Protestant Church down to her last illness the mother professed the Protestant faith by regular attendance at Divine Service and at several Protestant churches. During her last illness she was attended by a Protestant clergyman, and on the forenoon of the day preceding her death he administered Holy Communion to her. On that day or on the day of her death, 4th July, she was attended by a Roman Catholic priest, and received back into the Church in which she had been brought up; and on this occasion, as stated by the priest, she expressed her desire that the child should be brought up as a Roman Catholic. The child had for six years been trained and taught in the Protestant faith, and, in accordance with the mother's wishes, had regularly attended for over two years the Sunday school attached to St. Matthias Church and the day school attached to Leeson Park Church, both Protestant churches, and was doing so up to the date of the present application. The Strongs lived alone, there being no child of the marriage, and were willing and anxious to adopt the child of Mary Connor in accordance, as they alleged, with her expressed wishes.

In an affidavit used on the hearing of the Appeal, Dr. Baxter stated that Mary Connor was suffering from pulmonary tuberculosis, and that on the 4th July she was dying, and that he did not consider her in a fit state, or as having the capacity, owing to bodily weakness and approaching death, to discuss religious questions.

Kate Connor, the maternal grandmother of the infant, appealed to the Court of Appeal (1). The notice of appeal asked, inter alia, for an order that the said Kate Connor, or some other proper person, might be appointed the guardian of the person of the infant during her minority, or until further order; and in an affidavit of the said Kate Connor (which with other affidavits not before the Master of the Rolls was by leave of the Court read on the hearing of the appeal) a consent was exhibited by which a lady of position in Dublin agreed to become guardian of the infant should the Court of Appeal see fit to appoint her as such. It also appeared that arrangements had been made by this lady under which, if she was appointed guardian, the infant would be received into the home of the Nuns of the Sacred Heart,

Drumcondra Road, Dublin, to be there maintained and educated, in place of being sent to reside with her maternal grandmother.

O'Connor M.R. :—

This is a painful case, involving a contest for the custody of an illegitimate child, aged seven years, whose father is unknown and whose mother is dead. This child is at present in the custody of a Mr. and Mrs. Strong, who carry on a small business in the stationery trade at 32 Charlotte Street, Dublin. The maternal grandmother of the child resides in Higgins' Lane, Athy, where she makes her living as a charwoman. As the natural relation of the child she seeks to get her custody from people who are absolute strangers in blood. The case is not made less difficult to deal with by the circumstance that the parties on both sides are actuated by religious zeal, Mr. and Mrs. Strong wishing to bring up the child as a Protestant, while the grandmother wishes to have her brought up as a Roman Catholic.

The history of the case, which is a melancholy one, is this:— The mother was seduced by an unknown man, and gave birth to the child on the 26th April, 1911. Within a few months after the event both mother and child were received into the house of Mr. and Mrs. Strong, and, save for a short interval of a couple of months in 1918 continued to live with them till the mother's death, which took place on the 5th July in that year. Mr. and Mrs. Strong do not state the circumstances in which the mother and child were taken into or received in their house. Some accident may have brought them into contact, and the Strongs may have been moved merely by compassion for a poor woman in distress, or they may be people with missionary zeal, whose avocation is to seek out women who have fallen, with a view to regenerate them, or they may be the paid agents of some missionary society. For the purposes of my decision, I do not think it necessary to make any inquiry into this.

The mother had been brought up a Roman Catholic, and was such when she went to Mr. and Mrs. Strongs house. The child had been baptized a Roman Catholic. In November, 1912, the mother, having been then in residence with Mr. and Mrs. Strong for about five months, became a Protestant, and was received into communion with the Church of Ireland at the Mission Church, Townsend Street, and the child was again baptized as a Protestant.

From the date of her reception into the Protestant Church down to her last illness the mother professed the Protestant religion by regular attendance at Divine Service in Protestant churches—the Mission Church in Townsend Street, St. Matthias' Church, and St. Kevin's (Protestant) Church. This is not contradicted. She also brought up her child as a Protestant or at least allowed her to be so brought up. This also is not contradicted.

The mother died in Mr. and Mrs. Strongs house on the 5th July, 1918, but she had left them, and remained away in Belfast for the space of two months in that year, after which she returned. Again the circumstances of her departure and return are left obscure, and I do not think it necessary to inquire into them. Perhaps the mother came back in bad health. She did not live very long after that event. During her last illness the mother was attended by a Protestant clergyman, who administered Holy Communion to her; but on the day preceding her death or on the day of her death she sent for a Roman Catholic priest, and was received back into the Church in which she was brought up, and of which she remained a member till she received the hospitality of the Strongs. This is the sad history of a life wrecked by the villainy of someone whose conscience I hope is now smitten. It is not for me to say whether or not this poor...