Re O'Hara

• Jurisdiction: Ireland
• Judgment Date: 09 December 1899
• Court: Queen's Bench Division (Ireland)
• Date: 01 January 1900

In re Harriet O'Hara, An Infant.

232 THE IRISH REPORTS. [1900. Exch. Cham, earliest periods of our law, should he ever withdrawn. I concur 18'2- in the judgment of the Chief Justice, and for his reasons. A great Devonshire deal of -g^^ ^ q,^^ hag stated j also concur in j Foot. rnust sayand I think it right to advert to the circumstance Pigot, C.B. that, on the main point in the case, the very point upon which so much controversy has arisen, and upon which there seems to he a considerable difference of opinionsome difference between the views entertained here and some of those entertained in the Queen's Benchthe Chancellor expressly stated that lie thought it a fit subject for consideration in the superior tribunal, and that this constituted one of the reasons why he did not wish to conclude the party by refusing the issue of the prohibition. Solicitor for plaintiff in error : J. B. Julian. Solicitor for the Duke of Devonshire: B. Orpin. [a. e. r. j.] Appeal. In kb HARRIET O'HARA, an Infant (1). 1899. Oct. 27. InfantCustodyMother, right ofAbandonmentCustody of Children Act, Nov. 2. 1891 (54 Vict. c. 3). Deo. 9 The father of the infant, who was a farm-labourer, died in 1890, leaving a widow and three children, of whom H. was the youngest. The mother, being in poor circumstances, obtained employment as a domestic servant, and placed the children under the care of the Protestant Orphan Society. In October, 1897, the mother was in the service of M., a farmer possessed of a substantial farm in the county of Fermanagh, and on the 5th October, 189-7, an agreement in writing was entered into, between the mother and M., that M. should adopt the child, and the mother agreed to give the child to M., and to have no claim on her. Shortly afterwards the mother was married again to a small farmer, near N., in the county of Fermanagh. There was no difference of religion between the parties. In the beginning of 1899, the mother demanded the child from H., who refused to givo her back, unless lie was paid for her support and maintenance. On a motion for a writ of habeas corpus, Kenny J., sitting as Vacation Judge, saw and had a conversation with the child, and was satisfied that she (1) Before Lose AsnBoTrajrE, C, and FrraGruBOK, and Holmes, L.JJ. Vol. II.] QUEEN'S BENCH DIVISION. 233 regarded with the strongest aversion the idea of returning to her mother, and Appeal. held that, having regard to the handing over of the child under the circumstances 1899. deposed to, the character of the mother's evidence, as given in her affidavits, /,( re and the circumstances and present position of the child, the latter ought O'Haba. not, from the point of view of its own welfare, to bo taken from the custody of M. : Held by the Court of Appeal (reversing the decision of Kenny J.), that the mother had not deserted or abandoned the child within the meaning of s. 3 of the Custody of Children Act, 1891, and that she ought to be given into her mother's custody. " The Custody of Children Act, 1891," discussed. Maky Elliott, tho mother of the minor, was married first to James O'JJara in September, 1877, and there were three children, a son and two daughters, of whom Harriet O'Hara was the youngest. She was born on the 1st July, 1888. James O'Hara died in January, 1890, and after his death the widow, being in poor circumstances, obtained employment as a domestic servant, and sent the children to the Fermanagh Protestant Orphan Society. She went to see the child once a year, when the Society held a meeting in Enniskillen. She was then in service about ten miles from Enniskillen, and walked the distance to see her child. About the end of 1896 Mrs. Elliott was in the employment of a farmer named Edward M'Mahon, who had a farm of over 40 acres near Brookborough, in the county of Fermanagh. M'Mahon was married, but had not any children. Mrs. Elliott had received a small legacy of about £30 in 1895, and in October, 1897, she asked M'Mahon to take the custody of Harriet, who was then about nine years old, which he consented to do, and an agreement was then drawn up by M'Mahon, which the mother and M'Mahon signed, to the following effect:"Articles of agreement made and entered into this 5th day of October, 1897, between Edward M'Mahon, of Carrickapolin, in the county of Fermanagh, of the one part, and Mary O'Hara, widow, in said county, of the other part: whereby tho said Edward M'Mahon agrees to adopt Harriet O'Hara, child of Mary O'Hara aforesaid, and the said Mary O'Hara agrees to give Harriet O'Hara to the said Edward M'Mahon, and have no claim on the said Harriet O'Hara, who was born and baptized in the parish of Galloon, county Fermanagh, and is nine years old on the 1st July, 1897." The mother left M'Mahon's employment shortly after, and in 234 THE IRISH REPORTS. [1900. Appeal, the month of February, 1898, she was married to one James Elliott, 1899,_a farmer, who had a small farm of 4 acres, with a small house, O-Haua. c^ose ^ Newtownbutler, in the county of Fermanagh. In the month of May, 1899, Mrs. Elliott wrote a letter to her daughter Harriet, asking her to come and pay her a visit from Saturday to Monday. The request was complied with, and the child was sent down. Mrs. Elliott complained that on the occasion of this visit the child was in an unclean condition, and presented the appearance of being badly cared for. This was denied by M'Mahon. On the 20th May, 1899, Mrs. Elliott and her husband went to M'Mahon's house and demanded that the child should be given to her. This demand was refused by M'Mahon, and a discussion took place, which finished by Mrs. Elliott and her hus-bnnd being thrust out of the house. On the 11th Juno, 1899, Mr. Winslow, Mrs. Elliott's solicitor, wrote a letter to M'Mahon, again demanding the child for the mother, to whicli M'Mahon replied by letter, dated the 13th June, offering to give up the child provided he was paid for her support and maintenance during the time she was with him. Further correspondence passed, in the course of which M'Mahon stated that the sum lie was prepared to take for the child's maintenance was £8 10s. During the two years the girl lived with M'Mahon she had been sent regularly to the National School and the Sunday School, and certificates were produced from the school teacher and the medical officers of the district to certify that the child had alwaj's been well eared for and treated. M'Mahon also deposed that his wife and he were both much attached to the child, and that the child was fond of them. There was no difference of religion, as the parties were all members of the Church of Ireland. It was sworn by Mrs. Elliott, and not contradicted, that M'Mahon dispensed with the services of a servant woman within three months after Harriet O'Hara went to reside with them, and that she worked as their servant, not only in the house, but in the fields. On the 5th July Mrs. Elliott obtained a conditional order for a writ of habeas corpus against M'Mahon in order to obtain the custody of the child. On the 2nd August an application was made to Kenny, J.,, Vol. II.] QUEEN'S BENCH DIVISION. sitting as Vacation Judge, to make the order absolute, and M'Mahon opposed. Kenny, J., saw and had a conversation with the child, -and was satisfied that tho child regarded with the strongest aversion the idea of returning to her mother. His Lordship held that, having regard to the mother handing over the child under the circumstances deposed to, the character of her evidence as given in her affidavits, and the circumstances and the then position of the child, the latter ought not, from the point of view of its own welfare, to bo taken from the custody of M'Mahon. From that decision Mrs. Elliott appealed. On the 27th October the case was argued by counsel in the Court of Appeal, when the Court adjourned the case until the 2nd November, and intimated that the parties might, if they thought fit, attend and give evidence. On the 2nd November Mrs. Elliott and her husband attended, and also M'Mahon, and tho child was in Court. Mrs. Elliott and her husband and M'Mahon were examined. At the end of the hearing the case was again adjourned, and the Court intimated that M'Mahon might, if he thought fit, lodge an undertaking for the purpose of stating what provision, if any, he intended to make for the child. On the 6th November, 1899, M'Mahon lodged an undertaking by which he agreed to maintain and educate the child in a proper manner until she attained twenty-one, or married with the approval of the Rector, and on her attaining twenty-one or marrying with such approval as aforesaid to pay her £20, and in the event of his death before either of those events to charge his property with £20 iu her favour. Bernard, for Mrs. Elliott. Morgan Byrne, for M'Mahon. Loud Ashbourne, C. : This is an appeal from an order of Kenny, J., sitting as Vacation Judge, made on a motion for a writ of habeas corpus, instituted by the mother of the infant, Harriet O'Hara. The application was made by the mother, and the circumstances must be very special which will prevent a mother from obtaining the custody and control of her child, of only eleven years of age. The facts 236 THE IRISH 11 [SPOUTS. [1900. Appeal, of the case are undisputed. The father and mother of the child I899- . were married in 1877, and the father died in 1890, leaving a son O'Haua. anc* *"wo daughters. There is no question about religion, as the - parties are all Protestants, and these three children were all brought Lord Ashbourne, C. up by the Protestant Orphan Society. The mother is a humble, but respectable, woman, and after the death of her husband she had to work as a domestic servant te earn her livelihood. Whenever she had opportunity she went to see her youngest child, Harriet, to ascertain that proper care was being taken of her, the son and the elder daughter being able to provide for themselves and to .earn their own living. But the youngest child had...