1843. Nov. 10.

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THE QUEEN v. THE INHABIT-
ANTS OF BIRMINGHAM.

Order of Removal-Settlement-Parent and Child.

A widow having two legitimate children whose settlement was in the parish of B, married a second husband having a settlement in and residing in the parish of A. Whilst the children were under the age of nurture, they all became chargeable to the parish of A. :-Held, that the children could not be separated from the mother and removed to the parish of B, though the mother consented to such removal, and wished them to be sent to their own parish.

On appeal against the order of two Justices, whereby Harriet Atkins and Elizabeth Ann Atkins, children of James Atkins, deceased, were removed from the parish of Aston to the parish of Birmingham, both in the county of Warwick, the Sessions confirmed the order subject to the opinion of the Court, upon a CASE, which set out the examination of Elizabeth Johns, the mother of the paupers, and from which it appeared, that in August 1834, she, the said E. Johns, intermarried with her late husband James Atkins, at Edgbaston, by whom she had two children born in lawful wedlock, namely, the said Harriet Atkins and the said Elizabeth Ann Atkins, the former being nearly seven years, the latter a little more than five years of age; that her said late husband died in December 1837, and that in 1841 she intermarried with Joseph Johns, her present NEW SERIES, XIII.-MAG. CAS.

husband, who is now out of employ and unable to support her and her children; that they are all inmates of the workhouse, chargeable to the parish of Aston, and that she consents to the removal of her children from her, and wishes them to be sent to their parish.

By the statement of the grounds of appeal, it was objected, first, that the said order of removal is bad on the face thereof, and inoperative, because it removes the said children Harriet Atkins and Elizabeth Ann Atkins, and separates them from their mother Elizabeth Johns, and from her care and custody, such children being respectively within the ages of nurture, as appears by the said order. Secondly, that the order is bad and inoperative, because the children removed thereby cannot be removed with the consent of their said mother from her, or from her care and custody. Also that the said examination is bad, because the said mother, Elizabeth Johns, has no power to consent to the removal of her said children, and their separation from her, and that the order and examination were bad, because the said H. A. and E. A. A. are thereby separated from their said mother, and removed from her care and custody. On the hearing of the appeal, it was admitted, that the legal settlement of the said H. Atkins and E. A. Atkins was, at the time of making the said order, in the parish of Birmingham; but it was objected, for the appellants, that the said children, being within the age of nurture, could not be separated from their mother by an order of removal, even with her consent.

B

The Quarter Sessions were of opinion, that the said children, although within the age of nurture, might be removed to their own parish and separated from their mother by her consent, and confirmed the order. If the Court should be of opinion that the decision of the Court of Quarter Sessions on this point was incorrect, then the said order of removal to be quashed. If otherwise, the said order to be confirmed.

Daniell and Mellor, in support of the order of Sessions.-There is no imperative rule of law to prevent the separation of nurse children from their mother. Such separation has taken place in cases in which orders have been made for the removal of children under the age of nurture, without reference to the settlement of their parents- The King v. Bucklebury (1), The King v. Benett (2) The Queen v. Wendron (3). This is like a case of voluntary desertion. The parish of Birmingham being compellable to reimburse the parish of Aston, it avoids all circuity. The form of order on the churchwardens and overseers to reimburse a parish in which a child is residing with its mother for nurture, states that such mother "is not willing to part with the child until it attains the

age of seven years"-4 Burn's Justice, Chitty's edit. 1074. So the statute 22 Geo. 3. c. 83. s. 30, which enables guardians of the poor to put out children under seven years of age, provides, that nothing therein contained shall give power to separate children under seven years of age from the parents without the consent of such parents."

[COLERIDGE, J.-Suppose the mother were not satisfied that the child was properly taken care of, could she get it back again?]

[LORD DENMAN, C.J.-According to your argument, if the mother revoked her consent it would be a sufficient ground for getting rid of the order.]

Hayes, (with whom was I. Spooner,) contrà. If this child is removeable, by the same rule a child a week old might be removed. None of the authorities referred to on the other side apply to such a case as the present. In The Queen v. Wendron the child

In

was already separated from the mother, and there was no power to remove the child to the parish in which the mother was then settled and residing at the time of the order. The King v. Benett the mother was an Irishwoman, and the Justices were bound to remove her, though they had no power of removing her illegitimate child from its birth settlement in this country. The rule that nurse children, whether legitimate or illegitimate, cannot be separated from the mother, has always been recognized— The King v. Hemlington (5), The King v. Wankford (6), The King v. Saxmundham (7), Shermanbury v. Bolney (8), and The King v. St. Giles's in the Fields (9). The rule appears to be adopted for the benefit of the child, and it is one which the child is not of an age to waive; and in this particular case, the mother, who had married again, was not a free agent for the purpose of consenting to the removal.-(He was then stopped.)

LORD DENMAN, C.J.-Cases have arisen, where, in order to give effect to the express words of an act of parliament, it has been necessary to break in upon an established principle: no such necessity, however, exists in the present case. It is an established rule, recognized by all Judges, and doubted by none, that a child within the age of nurture must remain with the mother. Such rule has been laid down for the benefit of the child, and has no reference to the will of the mother. We ought to crush the first attempt to depart from that principle, as it is of the highest importance that the rule should be understood. The order of Sessions must be quashed.

WILLIAMS, J.-I fully agree that the rule is intended for the benefit of the child; and it is of the highest importance that it should not be departed from.

COLERIDGE, J.-I also agree that the order of Sessions must be quashed. The question proposed to us has been raised in the driest possible way, and we must lay down a rule applicable to all cases of children within the age of nurture, and cannot make a distinction between the case of a child six days

(5) Dougl. 9, n. 2. (6) Carth. 449.

(7) Fort. 307; s. c. 2 Bott, 16. (8) Carth. 279.

(9) 2 Bott, 21.

and one of six years old. What could be more shocking than the removal of a child a week old to a distant part of the country, merely because the mother consented to such removal? It is to be observed that, in the present instance also, the mother is a married woman, whose consent to any act relating to the alienation of her property would amount to nothing.

WIGHTMAN, J.—I agree with the rest of the Court that the order of Sessions should be quashed, on the ground that the rule which prohibits the separation of a child under seven years of age from its mother, was intended for the benefit of the child.

The pauper was let into occupation of three acres and three roods of land, at the rent of 14l. 14s. a year, the landlord agreeing to pay all that came against it. By reason of this agreement of the landlord, the rent was higher than it otherwise would have been.

The pauper's name was in the rate book as occupier, but when the rate was demanded, he referred the overseer to the landlord, who paid it :- Held, that this was not such a payment of rates as to satisfy 3 Will. & M. c. 11. s. 6, for 4 & 5 Will. 4. c. 76. s. 66, and that no settlement was gained thereby.

On an appeal against an order of two Justices, (dated the 10th of January 1843,) removing Thomas Gallantree, his wife, and

children, from the township of South Kilvington to the township of Newshamwith-Breckenborough, both in the North Riding of the county of York, the Sessions quashed the order, subject to the opinion of this Court upon the following

CASE.

In January 1840, the pauper, who had previously gained a settlement in the township of Newsham - with - Breckenborough, took a cottage, being a separate and distinct dwelling-house in the township of South Kilvington, of a Mr. West, at the annual rent of 51.; nothing was said about the rates with respect to the cottage, for which in two several rates made for the relief of the poor, on the 12th of November 1840, and the 22nd of February 1841, the pauper was rated at the sum of 2s. 9d., being in each instance a rate of 1s. in the pound on the sum of 2l. 15s., being the amount at which, in each of the said rates, the cottage was assessed, both of which rates the pauper paid. At Candlemas 1841, Mr. West let the pauper a field, containing three acres and three roods of land, in the said township of South Kilvington, upon the terms following: the land was taken from year to year, the rent was fourteen guineas a year, and the landlord was to pay all that came against it. The rent at which the pauper agreed to take the field, was a higher rent, because the landlord was to pay the rates and all that came against it.

The pauper actually occupied the field, together with the cottage, from Candlemas 1841 to August 1842, at the rent of 197. 14s. a year, and during this period he paid the landlord the whole rent, and was rated and charged in respect of the field and cottage as follows: