that the children should be brought up as Roman Catholics. (n) In a case before the Privy Council, (0) Lord Hobhouse is reported to have said, "The course of legislation shows distinctly a growing sense that the power, formerly accorded by law to fathers of families, was excessive, and that the welfare of the children required that it should be cut down." In this case the husband had applied for a writ of habeas corpus to recover possession from his wife of their three children. It appeared, from the evidence, that he had been guilty of drunkenness, and that it was not for the welfare of the children to live with him. The Privy Council held, that the Courts below exercised a right discretion in refusing the writ. (p) Even in matters of religious belief the Court will consider the interests of the children, so that where a Roman Catholic father having given way to drink the Court ordered his two daughters to be brought up with a Protestant, an application by the father, on his complete reformation, to be allowed to bring up the children as Roman Catholics was refused on the ground that it was too late to change the religion of the elder girl and that it was undesirable to separate the younger from her.(q) So, too, the Court has jurisdiction to protect the conscientious convictions of a minor although adverse to the religion of a living father. (r) The interests of the child had always, as has been seen, received a greater degree of consideration from the Court of Chancery, than was shown by the Courts of Common Law, and now by the Judicature Act, 1873, section 25, sub-section 10: "In questions relating to the custody and education of infants, the rules of equity shall prevail." (p) Right to appoint guardians by will. Guardianship of Infants Act. At Common Law the father's right extended even after his death, and if he appointed testamentary guardians, the mother could not interfere with them, (s) but if no guardian were so appointed, the Courts of Equity considered the mother to be the guardian by nature and nurture up to the age of twenty-one. (t) In the case of R. v. Birmingham (u) it was held, that a child under seven years () of age cannot be separated from its mother by order of removal, even with her consent. "The rule," said Williams, J., "is established for the benefit of the child, and therefore the consent of the mother cannot operate against it." By the Guardianship of Infants Act, 1886, (y) the guardianship of a child on the death of the father is given to the mother, who may act, either alone, or jointly with a guardian appointed by the father. If no such guardian has been appointed, the Court may, if it think it necessary, appoint one, but the Court will only exercise this power if it appears to be desirable to do so in the interest of the child, and the fact that the child's mother has married a husband who is a Roman Catholic, the mother and child being Protestant, is not, in itself, a sufficient reason for the exercise of this power. (2) This Act does not, however, affect the right of the father to decide on the child's religion. (a) The Court has jurisdiction to remove a guardian appointed by the mother under section 3, if it is satisfied that it is for the welfare of the infant so to do. (b) It has been held in Witten's case (c) that under section 5 of the Act, the Court has power, during the lifetime of the father, to order the delivery of the child to the custody of the mother without fixing any limit of age. This section of the Act has materially altered the (s) Reynolds v. Teynham, 9 Mod. (t) Mendes v. Mendes, 3 Atk. 619. (z) X. in re, [1899] 1 Ch. 526. (a) Scanlan, in re, 40 Ch. D. 200. (b) McGrath, in re, ante, p. 5; and see sect. 6 of the Act. (c) 57 L. T. 336. position of husband and wife in respect of the custody of their children and has given the Court full jurisdiction to override entirely the Common Law rights of a father. (d) Where the property of the infant does not exceed 500l. a County Court judge has all the powers under this Act. of a judge of the High Court. (e) Under section 7, the Divorce Court is empowered, after having granted a decree, to declare either of the parents, against whom the decree is made, to be unfit to have the custody of the children (if any) of the marriage, and in such case the surviving parent, if he or she has been so declared, shall not be entitled to the guardianship. (ƒ) If the Divorce Court has dealt with the question of the mother's access to the children the Court of Chancery will not interfere.(g) circumstances a mother is deprived of the right. A mother will not be allowed to enjoy her right of Under what custody if she has been guilty of gross misconduct or if she has treated the child with cruelty, or has ill-used it,(h) or is unfitted by insolvency (i) or lunacy. () The fact that the mother has married a second husband of a faith different to that in which the infant is being educated, is not of itself sufficient to justify the interference of the Court with her guardianship, so long as there is no personal misconduct or interference with the proper bringing up of the infant. (1) The Court will only interfere where it is shown that, having regard to the real benefit of the infant, it ought to do so.(1) If, however, it is the testamentary guardian who has changed his religion after the testator's death from that of the father to another, the Court may remove him from his office.(m) The fact that the mother, being without means, had Reg. v. voluntarily placed her son in the hands of a third party, will not disentitle her to recover the custody of him.(n) The manager of a home requires no right over a child entrusted to him, and if the mother having changed her religion, chooses to remove him, she is entitled to do so.(0) Where the custodian of an illegitimate child has obtained the custody of it from the mother under an agreement that the child should be allowed to remain permanently with the custodian, the mother is none the less entitled to reclaim it in spite of such agreement. (p) These last decisions, it must however be remembered, are subject to the modification contained in the Custody of Children Act, 1891. Section 2 of this Act (q) declares that where a writ or order for the production of a child is applied for, and the child is being brought up by another person, the Court may direct the parent, before receiving the custody of the child, to pay all, or part, of the expenses properly incurred in such bringing up. The custodian is not, however, entitled to retain the custody of the child in security of arrears of maintenance that may be due to her from the mother. (p) In the case of Reg. v. Gyngall, (r) the child, a girl of fifteen years of age, was residing, by her own wish, in a Protestant institution in Weymouth; application was made on behalf of the mother, a Roman Catholic, for a writ of habeas corpus against the proprietor of the home. The Court of Appeal held, affirming the judgment of the Queen's Bench Division, that since, by virtue of the Judicature Act, the Court possessed a Chancery jurisdiction with regard to the custody of infants, although the mother had not been guilty of any misconduct to disentitle her to the custody of the child, the Court would, if satisfied that it was essential for (n) R. v. Williams, 62 L. J. 69. (0) R. v. Barnardo, 23 Q. B. D. 305; see post, p. 10. (p) Kerrigan v. Hall, 4 F. 10 Ct. of Sess. See also on this section (r) [1893] 2 Q. B. 232. the welfare of the child, refuse to give the mother such custody. "At Common Law," said Lord Esher, M.R., (s) "the Lord Esher. parent had, as against other persons generally, an absolute right to the custody of the child, unless he or she had forfeited it by certain sorts of misconduct. . . but there was another and an absolutely different and distinguishable jurisdiction, which has been exercised by the Court of Chancery from time immemorial. It was a paternal jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in place of a parent, and as if it were the parent of a child, thus superseding the natural guardianship of the parent.' The Court of Chancery will now interfere for the protection of a child by removing a guardian and giving directions as to the religion in which the child should be brought up, even though the child is not a ward of Court and has no property.(t) II. ILLEGITIMATE CHILDREN. "The law," says Lord Mansfield, (u)" regards an illegiti- Common Law mate child as filius nullius, and consequently neither the doctrine. mother nor the putative father has a legal right to the guardianship of it.(x) As long, however, as an illegitimate child is of the age Guardianship of nurture, (y) the Courts will support the mother's right by nurture. to the custody of it, and will even assist the mother to recover it, when the father has wrongfully obtained possession of it,(z) but not apparently if he had obtained the possession fairly. (a) Guardianship by nurture occurs where there is no When it (s) Id. at p. 239. (t) McGrath, In re, ante, p. 5. (u) R. v. Felton, 1 Const. 494. (x) See also Lloyd, In re, 3 Man. & Gr. 547. (y) i.e. 14. See Hyde v. Hyde, 29 L. J. (P. & M.) 150. (z) R. v. Soper, 5 T. R. 278. (a) R. v. Moseley, 5 East, 224. terminates. |