Re M., (an Infant)

CourtHigh Court
Judgment Date21 June 1946
Date21 June 1946

High Court

In re M. an Infant.
In the Matter of M., an Infant, and in the Matter of the Courts of Justice Act, 1924, and in the Matter of the Constitution. (1)

Infant - Custody - Illegitimate child - Rights of the mother - Welfare of the child.

Habeas Corpus.

The prosecutrix sought to have made absolute, notwithstanding cause shown, a conditional order of habeas corpus ad subjiciendum made on the 16th day of November, 1945, directed to and ordering the respondent to have before the Court M., the illegitimate infant child of the prosecutrix.

In support of her application, the prosecutrix filed three affidavits sworn by herself, and one sworn by her employer. The respondent filed four affidavits showing cause; one by herself, one by her sister-in-law, one by the doctor who attended the prosecutrix at the birth of M., and one by the nurse in whose home the prosecutrix was delivered of M.

Both the prosecutrix and the respondent submitted themselves to cross-examination.

The facts have been summarised in the head note and are sufficiently stated in the judgment of Gavan Duffy P.

Some days after its birth in 1943, the prosecutrix gave her illegitimate child into the custody of the respondent, together with a sum of £60. The respondent, a married woman with no children, did not meet the prosecutrix, but received the child from the nurse in whose home the child was born. Before the birth of the child the prosecutrix had arranged through the doctor that the respondent should "adopt" the child. The respondent had the child baptised and its birth registered, and on both occasions described the child as being that of herself and her husband. In August, 1944, the prosecutrix first met the respondent and asked for the return of the child, which was refused. Nine months later she again met the respondent and asked for the return of the child and was again refused. The respondent lived with her husband in a three room flat and the household had a weekly income of £6. The prosecutrix, who had no permanent home, but resided at her places of employment which she frequently changed, was at the time of the hearing employed as the manageress of a café at the weekly wage of £1. She alleged that she was also in receipt of gratuities amounting to £2 per week and lived in the café premises. She proposed bringing the child to reside there with her. It was alleged by the respondent that the prosecutrix could not adequately provide for the child and that the prosecutrix, if she obtained custody of the child, was going to live with the father of the child, a married man, or would use the child as a means of obtaining material benefit for herself from the father. The prosecutrix obtained a conditional order of habeas corpus to obtain the custody of the child, and on the application to make absolute the conditional order:

Held that, notwithstanding the natural right of the prosecutrix to the custody of her child, the paramount consideration was the welfare of the child and that it would not be for the child's welfare to be taken from the care of the respondent and given to the prosecutrix. Accordingly the cause shown against making the conditional order absolute must be allowed and the conditional order discharged.

Cur. adv. vult.

Gavan Duffy P. :—

On 10th June, 1943, the prosecutrix, an unmarried woman, gave birth to the little girl, now three years old, whose custody she brings these proceedings to recover. There is some conflict of evidence as to material facts, but the prosecutrix has been cross-examined on her affidavits, we have read an affidavit by the respondent and seen her in the witness-box, the doctor and the nurse concerned have given important evidence on affidavit, but there has been no demand to cross-examine them, and on the whole evidence I think that the main conclusions emerge beyond reasonable doubt.

On or about 18th June, 1943, at the nursing home where the child was born, the nurse who conducts the home handed over the baby to the respondent and paid her a sum of £60; the nurse was acting as agent for the prosecutrix and with

her consent. The doctor, who was the physician to the father of the child or to the father's wife, had made contact with the respondent before the child was born and had made the preliminary arrangements with her on behalf of the prosecutrix, who was anxious to go away to England, but wished to have the baby settled first.

The respondent and her husband had lost their own three children soon after birth; the respondent was not told the names of the child's parents, but the doctor told her that the father was a married man, that the child was illegitimate and that it was not wanted by anyone. The doctor had spoken highly of the respondent and her husband as adoptive parents to the prosecutrix and had given her their name and address; she did not visit them nor see their home, but she did obtain from the father of the child the money which was to be paid to them. The clear understanding of the parties was that the respondent was to adopt the little girl as her own. The nurse, in transferring the baby from mother to foster-mother, so arranged matters that the two women did not meet; I regard that unnatural procedure as a serious error of judgment.

Five days later, on 23rd June, the respondent and her niece called with the baby at the nursing home, when on their way to have the child christened; again the mother and the foster-mother did not meet, but the baby was taken up for its mother to see. On the advice of the nurse, the respondent, leaving the child at the nursing home, went off to register its birth, and in so doing she followed the advice she had received to enter the baby as the child of herself and her husband. Returning to the home, she then took the baby to a Catholic church, where it was baptised; her nephew was named as godfather and her niece was godmother. The child's Christian names were selected, naturally, by its adoptive mother. While the baby was at the nursing home, the mother learnt that it was about to be taken to a Catholic church for its baptism; she said nothing herself about a name for the child, and she made no protest or demur of any kind in regard to its baptism. She now gives the Court to understand that she did not think the Christian names mattered much, though she says that she felt hurt at being so completely ignored. It is quite clear, I think, that the mother at this time felt that she could have no voice in matters which must concern the adoptive parents; I do not think the baby's name troubled her at all; I believe she took no interest in its baptism and was indifferent to its religion; nor did she concern herself with the registration of the birth of a child which she had given up. The child has been treated ever since by the respondent and her husband as their own little girl.

The prosecutrix says that she is the daughter of a farmer with a substantial farm in the country and that she has four brothers. She is thirty-five years of age and has been earning her living for the past thirteen years; she says that she went to England for her first employment as a nursery governess to a lady in Surrey, with whom she stayed for two years, and then held four posts as nurse companion, and at the outbreak of war was companion to a lady in Maida Vale, London; she says she came back to Ireland in the autumn of 1940, because the air raids alarmed her father, and became a nurse housekeeper for eleven months, when her employer died, and she then went as a nurse to a home for the blind in Dublin for nine months, and then for a month to a private house in Ballsbridge as housekeeper, leaving that place for her confinement early in June, 1943. After her confinement she says that she went for a week as a "help" to a private house in Ballsbridge, and then as a nurse, unqualified, to a nursing home in Rathmines for "about four to six months roughly," before returning to England, where she became assistant housekeeper in an hotel until the place was bombed in March, 1944; her evidence is that she had meant to stay in England permanently and then to come back and take the baby when she could make a home for it. She says that she returned to Ireland in the spring of 1944, taking up a post as nurse in a Dublin nursing home, then becoming nurse to an invalid lady in an hotel in Dublin, and then taking a position in a private house in Rathmines. On 29th December, 1945, she obtained her present post, to which I shall return.

From the doctor's evidence it seems that the prosecutrix at some time in the summer of 1943, two or three months after the birth, called on him and said she had not realised what she was doing when she gave the child away; he says that this was her first intimation to him that she had not wished to be separated from the child permanently. The nurse says that two or three months after the birth the prosecutrix asked to see the child and it was brought to the nursing home as a meeting place. The evidence of the doctor and nurse shows that the mother did evince an interest in her child soon after parting with it; but it is much to be deplored that the prosecutrix has sought to strengthen her claim by misleading and disingenuous evidence on affidavit, and from her cross-examination I am driven to the conclusion that little reliance can be placed on her evidence. In her first affidavit, speaking as if she had met the respondent personally at the outset, she declares that almost immediately after the child was born the foster-mother said she was prepared to adopt the child for £70 and that the mother said she did not want to part with the child and must have it back in two months; she now admits that she did not meet the other woman when the money was paid, nor before, and says that her statement refers to messages which the nurse is alleged to have carried to and fro. It is quite incredible that on the payment of a substantial sum...

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