Re Story, Infants

• Jurisdiction: Ireland
• Judgment Date: 11 February 1916
• Date: 11 February 1916
• Court: King's Bench Division (Ireland)

In re Story, Infants.

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1916.

Infants — Custody — Father and Mother of different Religions — Habeas Corpus — Discretion of Court to refuse Custody to Father — Guardianship of Infants Act, 1886 (49 & 50 Vict., c. 27), s. 5.

S., who was a Roman Catholic, married in the year 1903 in a Protestant church a woman who was a Protestant. He promised at the time of the marriage to adopt his wife's religion. There were two children of the marriage, and S. allowed them to be baptized and brought up as Protestants. From the year 1909 the children had lived with their mother, and been supported and educated by her, S. contributing nothing to their support or education, and living, at first with his sister, and afterwards becoming an inmate of a workhouse. In December, 1915, the children being then aged about 11 and 8 respectively, S., being desirous that they should be brought up as Roman Catholics, demanded them from his wife, and this demand being refused, he applied for a writ of habeas corpus. He was at this time still an inmate of the workhouse, but had arranged for the children to be maintained and educated in Roman Catholic charitable institutions.

Held, that the writ of habeas corpus should not be granted.

Effect of s. 5 of Guardianship of Infants Act, 1886, considered.

Application to make absolute a conditional order for a writ of habeas corpus, directed to Ivy Isabella Story and Isabella Jay, to have before the King's Bench the bodies of Stuart Bernard Story and Maria Cathleen Story, infants.

Bernard Story, the father of the infants, had obtained a conditional order for the writ of habeas corpus upon an affidavit made by him, which set out as follows:—

I, Bernard Story, at present an inmate of Loughlinstown Union, in the County of Dublin, aged 21 years and upwards, make oath, and say as follows: —

“1. I was married to my present wife, Ivy Isabella Story, in Grangegorman Protestant church, on the 13th December, 1903, I being a Roman Catholic. There was issue of said marriage three children, two of whom now survive, namely, Stuart Bernard Story, born 2nd November, 1904, Maria Cathleen, born 2nd March, 1908. Both my children were baptized in the Protestant church, Grangegorman. Up to July, 1909, I was a grocer's assistant in the Junior Army and Navy Stores. In that month I got ill, and was obliged to go to hospital, and was discharged from hospital in or about April or May, 1910. During my illness in hospital my wife and my two children went to reside with my mother-in-law, Isabella Jay, at 47 De Courcey Square, Glasnevin.

2. On my discharge from hospital I went to reside, during my convalescence, with my sister in Kingstown, as my mother-in-law would not permit me to reside with my wife at her residence. My wife refused to reside with me at 3 Northumberland Avenue, Kingstown; nor would she permit my two children to reside with me, or allow me to visit them.

3. On the 10th October, 1910, my solicitors wrote to my wife demanding the custody of my two children, and I called in pursuance of said letter at my wife's residence, on Wednesday, the 12th day of October, 1910, for the purpose of taking my children with me. I did not see my wife; but my mother-in-law opened the door, and refused to allow me to see my children, or to give me the custody of said children. Subsequently, my sister raised some objections to having my children reside with her at 3 Northumberland Avenue, Kingstown, and not having any place to bring them, owing to their tender years, I allowed the matter to remain over until they were older. Owing to want of employment and delicate state of health, I was compelled in April, 1913, to become an inmate of Loughlinstown Union. In August, 1913, I arranged with the Very Rev. Canon Murphy, p.p., Kingstown, to have my children placed in Catholic institutions, as I wished them to become Catholics, and be brought up in my religion. Accordingly I again applied, through my solicitors, for the custody of my said two children, and I beg to refer to a letter written by them to my wife, on the 1st August, 1913, upon which, marked ‘A’ I have endorsed my name prior to swearing hereof. I say that said letter was returned to my said solicitors, the envelope being marked ‘opened by mistake, Mrs. Strahan, 40 De Courcey Square, not for her,’ and also having the words, ‘not known at address, J. Mc. G.’ I believe the latter words and initials are the postman's. I beg to refer to said envelope containing said letter, upon which, marked with the letter ‘B,’ I have endorsed my name prior to swearing this affidavit.

4. I was unable to find any trace of my wife or children until July, 1914, when my wife visited me at Loughlinstown Union and informed me that she was residing at 13 Home Farm Road, Drumcondra, but she would not bring the children to see me, and I understood from her they were still being brought up in the Protestant religion, and going to Mountjoy School. I subsequently arranged with the Very Rev. Canon Murphy to again try and get them into Catholic institutions, but my wife called on me about a fortnight ago, when she informed me she had no intention of giving over the custody of the children to Canon Murphy for the purpose of placing them in Catholic institutions, or having them brought up in the Catholic religion. I, on this, the 20th day of December, 1915, accompanied by my solicitor, and the Very Rev. Canon Murphy, and Mr. J. J. Kennedy, attended at 13 Home Farm Road, Drumcondra, for the purpose of getting the custody of my children. At the hall-door we met my mother-in-law, Mrs. Jay, and my wife, from whom I demanded my children, but they both subsequently refused to let me have the custody of them, nor could I get the children produced. It is my wish and desire that my children should be baptized as Roman Catholics, and that they should be placed in Catholic institutions, to be brought up as Roman Catholics. The Very Rev. Canon Murphy has arranged to have them placed in such institutions, where they will be maintained and educated, and I pray this honourable Court for a writ of habeas corpus, ad subjiciendum, directed to Ivy Isabella Story and Isabella Jay to give up to me the custody of my said children.”

An affidavit made by Mrs. Ivy Isabella Story, the mother of the infants, and filed by way of cause against the conditional order, set out as follows:—

“1. That I am of the Protestant religion and was married to the said Bernard Story on the 12th December, 1903, in the Protestant Church of All Saints, Grangegorman, Phibsborough, in the city of Dublin, and there were three children of the marriage, two of whom, a son named Stuart Bernard Story, aged eleven years and two months, and a daughter named Maria Kathleen Story, aged seven years and ten months, are living.

2. That at the time I was married to the said Bernard Story the said Bernard Story was nominally a Roman Catholic, but he promised that he would be whatever I was if I married him, or I would not have married him. On the faith of the said promise the marriage took place, and until we made a home for ourselves we went to reside with my mother at Albemarle Terrace, Phibsborough, and subsequently at 4 St. Joseph's Villas, and at 47 De Courcey Square, Glasnevin, in the city of Dublin.

3. That my said children were baptized by the Rev. Joseph Bewley, M.A., the curate of All Saints, Grangegorman, aforesaid, in the Protestant religion, and my said husband himself arranged with the said Rev. Joseph Bewley for the baptism of my said children and consented to their being baptized in the Protestant religion, and was present at each baptism in All Saints' Church aforesaid.

4. That a few years after my marriage to the said Bernard Story I noticed that he had become addicted to drink, and eventually my mother was obliged to put him out of her house owing to his filthy and offensive habits, the least of which perhaps was his heavy and excessive drinking of intoxicating liquors. I thereupon accompanied my said husband and we went to live at Addison Place, Botanic Avenue, Glasnevin, together with my said children.

5. That in the month of July, 1909, owing to the said excessive drinking of intoxicating liquors, the said Bernard Story dropped down in Botanic Avenue, Glasnevin, and the city ambulance brought him to the North Dublin Union, where they put him in the ward reserved for people of unsound mind, as he was suffering from delirium tremens.

6. That in the month of October, 1909, I took him out of North Dublin Union, thinking that a change might do him good, and brought him to his sister's residence at 3 Northumberland Avenue, Kingstown. On leaving him there I asked him what was to become of the little children; he said that they would not get in there (meaning his sister's residence), and told me I might take them where I liked.

7. That following on the events deposed to in paragraphs 5 and 6 hereof, I returned to my mother's residence with the said children, and since the 14th August, 1910, I have been employed as a ledger clerk in the offices of one of the principal provision merchants in the city of Dublin, and have since that time clothed, maintained, and educated my said children out of my earnings in the said employment as ledger clerk, together with such assistance as my mother has been able to give me, and at the present time my said children are being educated in the National School at Drumcondra.

8. That in the month of October, 1910, as I am informed and believe, the said Bernard Story and his sister brought two policemen to my mother's residence and demanded the said children, and after that I heard nothing of my said husband until the month of April, 1913, when I learned that he was in the Union at Loughlinstown, where I went to see him, and have since...