The State (Williams) v Markey

• Jurisdiction: Ireland
• Judgment Date: 22 November 1940
• Date: 22 November 1940
• Court: Supreme Court

The State (Williams) v. Markey

THE STATE (at the prosecution of George Williams and Teresa Williams)

and

CHARLES MARKEY

and in the Matter of DEREK JOSEPH WILLIAMS, an Infant

Supreme Court.

Infant - Custody - Parents, right of - Abandonment - Whether parents fit persons to have custody of the child. notwithstanding - Custody of Children Act, 1891 (54 Vict. c. 3), s. 3.

A. and B. were married on the 25th July, 1938, and a son was born to them on the 3rd January, 1939. Fearing that the wife's mother would learn of the birth of a child within six months after their marriage the parents had some days before the birth arranged that the child should be adopted by M. and his wife, and on the day following the birth the child was taken away by them. The following day an agreement was signed by the parents and M. whereby the parents agreed to surrender the child and all rights to the child, legal or otherwise to M. During the six months following the birth the father did not call to see the child. The mother called on three occasions. In the month of May, 1939, the wife's mother learned of the birth. In July, 1939, a formal application was made on the father's behalf for the return of the child, which was refused. On a motion for an order of habeas corpus:

Held by Black J. that both the father and the mother had abdicated their rights by their unnatural conduct, indicating that they were ill-fitted for their parental obligations, and that the child's welfare was likely to be best served by leaving it where it was, and accordingly that the motion for an order of habeas corpus should be refused. The parents appealed.

Held by the Supreme Court that the conduct of the parents was not such as to justify the inference that the child's welfare would be injuriously affected if returned to them, and, assuming that the facts of the case established that the parents had abandoned or deserted the child, within the meaning of s. 3 of the Custody of Children Act, 1891, nevertheless, having regard to: 1, the fact that the motive that actuated the parents in parting with the child was not an unnatural one; 2, their desire that it should return to them when its maternal grandmother had learnt of its birth; and 3, the more favourable financial circumstances of the parents, the abandonment or desertion did not indicate that the parents were unfit to have its custody, and further, that it was for the welfare of the child that it should return to the custody of the parents. Accordingly the order of Black J. must be reversed, and the order of habeas corpus must be granted.

Motion to make absolute a conditional order of habeas corpus ad subjiciendum notwithstanding cause shown.

The facts have been summarised in the headnote and are fully stated in the judgment of Black J.

The arguments were similar to those in the Supreme Court, reported post.

From this order the prosecutors appealed to the Supreme Court (1).

Cur. adv. vult.

Black J.:—

On the 15th of August last George and Teresa Williams obtained from this Court a conditional order of habeas corpus ad subjiciendum directed to one, Charles Markey of 32 Upper Rutland Street, Dublin, to have before the Court the body of Derek Joseph Williams, an infant in the custody of the said Charles Markey. Cause was shown and counsel were fully heard in due course on behalf of the prosecutor and prosecutrix and the said Charles Markey, respectively, the last adjourned hearing being on last Friday. Some eleven affidavits were filed on behalf of the parties.

Up to a certain point the facts were not in dispute. George and Teresa Williams, father and mother, respectively, of the child in question, were married on 25th July, 1938. The child was born on 3rd January, 1939. The parents were afraid that its maternal grandmother would become aware of its birth less than six months after their marriage, and in the hope of preventing this, they signed an agreement with the said Charles Markey, surrendering the child to him, and purporting to renounce all right to it.

The day after its birth the child was taken to the home of Charles Markey and his wife, where it has since remained. For over five months the parents gave no indication of a desire to get the child back; but in June the father called on Markey, as he says, on two occasions and demanded its return. There is a dispute about what was said on one or both of these visits; but it is common case that on the 13th July last a formal written request for the return of the child was sent by its father's solicitors to Mr. Markey. There seems to be no dispute that no request was made for the child's return earlier than June, by which time its grandparents had learned of its existence.

The father and mother did not deny that they signed the said agreement which is exhibited, but they say that they did not understand or know its purport. Williams told me on oath that he did not read it and that it was not read over to him. The man, Liam Conway, who drew it up, swore that he did read it over to Williams in the presence of a Miss Breen and Nurse Lowry, both of whom signed it as witnesses. Neither of these two ladies made an affidavit or was produced to support the statement of Williams that the agreement was not read over to him before he signed it, as Conway swears it was. Certain other allegations were made in earlier affidavits by the Markeys and not denied in the first answering affidavits by the Williams; but were denied by the latter at a later stage. For these reasons, and as a result of hearing Mr. and Mrs. Williams in the witness box as well, I have no hesitation in saying that I prefer to accept the account of the handing over of the child and of subsequent events given by Mr. and Mrs. Markey rather than that given by Mr. and Mrs. Williams, wherever these accounts conflict. I am, therefore, of opinion that the following synopsis of what took place is substantially reliable:—

About the 1st January last, Williams got a certain Mrs. Woods to busy herself about procuring some one who would adopt the child whose birth he was then expecting. Mrs. Woods approached a Mrs. Lundberg, who in turn persuaded Mrs. Markey to agree to adopt the child. Mr. Markey consented to her doing so.

Mrs. Markey paid several visits to the Williams on the day the child was born and before its birth. Finally, in the evening, less than an hour after it was born, Mrs. Markey returned, and both the father and mother of the child pressed her to take it away there and then. There was snow upon the ground at the time, and the nurse— Nurse Lowry—refused to allow the newly-born infant to be removed that night. The following day—the 4th January—it was removed to Markey's home, and on the 5th January the agreement mentioned was signed by Mr. and Mrs. Williams.

After the signing, Mr. Williams voluntarily gave £15 to Mr. Markey, which, the latter says, he accepted to enable his wife to buy a cot, perambulator, and other necessaries for the baby. Markey seems to have been anxious to assure himself that Williams was really parting with the child for good and all, and as a result of a remark he made, he says that Williams patted a dog, saying that he had other hobbies than children. Markey further says that Williams agreed that the child should be christened in the surname of "Markey"; but that Nurse Lowry had it christened in the surname of "Williams." When Markey learned of this he threatened to return the child, and as a result, Williams accompanied him to the Pro-Cathedral, where they saw the reverend gentleman who had charge of the register there, and to whom, according to Markey, Williams admitted that he had agreed to abandon all claims to the child.

From that day up to June, Williams never saw the child or went near the Markey's home. I am not sure whether he ever again saw the child until it was produced in Court in obedience to the conditional order.

As to Mrs. Williams, she seems to have met Mrs. Markey in the street some weeks after the child was born, and during the following six months to have paid three visits in all to the Markey's home, which, Mrs. Markey says in in effect, were of a short and perfunctory character.

Mr. Markey was until recently employed in the Department of Posts and Telegraphs at a weekly wage of £2 16s. 3d.; but since the 14th of July last he has been unemployed, and in receipt of £1 a week unemployment money. But he says his relatives are in comfortable circumstances and are assisting him financially. He hopes to get employment of which he is in search. Mr. Williams is in constant employment earning £3 7s. 0d. a week and has a four-roomed house with front and back garden. At the time the child was born he says he only had a three-roomed flat, one of the rooms having a smoky chimney. I gathered that this was put forward as a subsidiary reason for his decision to part with the child—as he says, temporarily. Finally, there is filed an affidavit by Mrs. Clancy, a nurse and inspector under the Children's Act. She says the child in question is under her supervision and that it is, to use her own words— "beautifully cared for and has an excellent home," and that Mr. and Mrs. Markey are devoted to it. She adds that no child under her supervision is being reared under better conditions or could be better cared for. So much for the facts.

I am satisfied on the evidence before me that prior to the birth of this child, Mr. and Mrs. Williams had decided to get rid of it as soon as it was born—the quicker the better—and, if necessary, to renounce all claims on it for ever. It is admitted that they signed the agreement for its surrender, and I have no doubt they thoroughly understood its contents. They have admitted that they knew nothing about the Markeys, except what they may have heard from Mrs. Woods or Mrs. Lundberg, and they agreed to hand over their child to these strangers without having even paid a preliminary visit to see what...