Re Mary Elliott, an Infant

• Jurisdiction: Ireland
• Judgment Date: 15 May 1893
• Date: 15 May 1893
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before HOLMES, GIBSON, AND MADDEN, JJ.

IN RE MARY ELLIOTT, AN INFANT

Reg v. HowesENR 3 Ellis & Ellis, 332.

Reg v. NashELR 10 Q. B. Div. 454.

Reg v. BarnardoELR 23 Q. B. Div. 305.

Reg. v. ClarkeENR 7 E. & B. 186.

Re Scanlan 40 Ch. Div. 200.

Re NewberyELR L. R. 1 Eq. 431.

Reg. v. Gyngall 9 Times' Rep. 471.

In re M'GrathELR [1893] 1 Ch. 143.

Times' Law Reports Reg. v. Gyngall, 9 Times' Rep. 471.

Habeas corpus — Custody of child — Practice.

504 LAW REPORTS (IRELAND). ft. R. 1. .Ex. Div. indictment, I shall impose a substantial fine ; and the person who 1893. erected the fence of barbed wire will ascertain that it would have COLLEN been on the whole cheaper for him to have erected a fence or wall Ems. for the protection of his property, even though the first outlay may Murphy, J. have been more than that expended on barbed wire. Solicitor for the appellant (Collen) : W. J. Shannon. Solicitor for the respondent (Ellis) : Barlow and ,Orr. J. P. B. IN RE MARY ELLIOTT, AN INFANT (1). Habeas corpus-Custody of child-General jurisdiction of the Queen's Bench Division since the Judicature Act-Practice. Although at common law the parent has an absolute right to the custody and guardianship of the child, unless that right was forfeited. by misconduct, yet the Court, exercising the paternal jurisdiction of the former Court of Chancery, may supersede that right, and will, in the circumstances of each case, order what is best for the moral, mental, and physical welfare of the child. The Court may ascertain this by a personal interview with the infant. Beg. v. Gyngall (9 Times' Rep. 471) followed. MOTION on behalf of Bridget Mary Amelia Leek to make absolute a conditional order for a writ of habeas corpus ad subjicienÂdum, directed to the superioress of the St. Louis Industrial School at Thurles, to bring up the body of Mary Elliot, an infant, the daughter of the applicant. The facts are fully stated in the judgment of Mr. Justice Holmes, reported infra. Mark B. Cooper, for the applicant : It is well-known law that the parent of a female child under sixteen years is legally entitled to her custody : Reg. v. Howes (2) Vol,. XXXII.] Q. B. & EX. DIVISIONS. 505 Even where the unfitness of the mother is admitted, it does not Q. B. Div. affect her right to have the custody of the child transferred : Reg v 1893. Nash (1). The parent does not divest herself of her maternal In re ELLIOTr, rights by entering into any agreement entrusting the guardian- AN INFANT. ship of her child to another. Such agreement can be revoked at any moment : Reg. v. Barnardo (2). Even the wishes of the child are not to prevail with the Court over the rights of the parent : Reg. v. Clarke (3). [He also referred to Re Scanlan (4) ; Re Newbery (5) ; Simpson on Infants, p. 142...