The Sun.
London, England, 1859-05-17 00:00:00

LAW IN TELLIGENCE—May 16.

JUDGES' ( ;HAMBERS, Sergeants' Inn,
(Bet are Mr. Justice Erie.)
EX PARTE JAMES M`DONNELL IN RE MARY ANNE
M'DONNELL.-• HABEAS CORPUS TO PRODUCE A
CHILD FROM I i ROMAN CATHOLIC SCHOOL,
This case, which was reported on Friday, came
on before Mr. Justice Erle, at chambers, on the re-
turn of the writ of habeas corpus granted by the
Court of Queen's Bench on Thursday, upon a
Catholic priest named Roberts and a Mrs. M'Car-
thy, the schoolmistress of the Roman Catholic
School in York-street, Westminster, to produce
Mary Anne M'Donnell, an infant under twelve
years of age.
Mr. Cook Evans appeared in support of the ap-
plication, and Mr. Baddeley on the other side.
Mr. Baddeley called the attention of his lordship
to the nature of the case which was before the Court
of Queen's Bench on Thursday, and said he had a
return to the writ of habeas corpus which he hoped
would be deemed sufficient. His lordship would
recollect that the child was stated to have been
detained at a Roman Catholic school away from its
father, and Mr. Roberts, a priest, and Mrs.
M'Carthy, the schoolmistress, had been served with
the writ to produce the child. The learned counsel
read the return by the defendants, setting forth
that the child came to the school of her own accord,
and left on the sth April, and was not under their
control or otherwise detained by them or either of
them. On the return which he had read, he sub-
mitted that his lordship would consider that the
matter had been answered.
Mr. Cook Evans apprehended that his lordship
would not be satisfied with the return unless it was
disclosed where the child was to be found. There
was nothing on the face of the return to show that
the parties did not know where the child was, at
least at the time the application was made to the
Court of Queen's Bench on Thursday last.
Mr. Justice Erle said a father was no doubt en-
titled to the custody of his child, and he suggested
whether it would not be better, without going into
the case, for the parties to state where the child was
to be found. A father had a sacred trust reposed in
him, and was answerable both here and hereafter
how he discharged his duty, and with respect to a
child of such an age as 12 years, a father was entitled
to have it under his care.
Mr. Baddeley said he had several affidavits in
answer, if it was necessary to go into the case,
which would show that the child was afraid to go
home, that her father had again married, and the
child, after she left school on the sth of April, was
found crying, and a friend had taken it
under protection. He could also show that
when the step mother came to the school, Mr.
Roberts told her that the child would be given
to her father ; but when he called the child had left,
and was found, as he had stated, in a distressed
state, and afraid to go home in consequence of the
treatment she had experienced.
Mr. Cook Evans remarked that the simple ques-
tion was, that the father wanted the child to go to
one school, and the child wanted to go to the Roman
' Catholic School. He denied that there ware any
' grounds for the alleged ill-!reatment of the child.
A discussion arose as to the law on the subject,
and several cases were referred to, including the
recent case of a child named Race.
Mr. Baddeley said the cases in the books did not
go on the age, but as to the willingness or discre-
tion of a child.
Mr. Cook Evans suggested that to detain a child
at her age was simply imprisonment,which the law
could not allow.
Mr. Justice Erle said he was anxious, if possible,
to settle the matter without going into the whole
case, as it was evident that the controversy_ likely
to arise would involve a good deal of personal feel-
ing from the religious opinions of the parties. He
had nothing to do with the question as to the treat-
ment of the child, and was not called upon to give
, an opinion. The parents were answerable for their
conduct in that respect. All he had to do was, to
decide that the father was entitled to the custody
of his child, and to see whether any further infor-
mation could be given where the child was to be
found, so that the father might go and take posses-
sion of his child. Therefore, he had suggested that
the best course would be for the other side to state
where the child was when the application was
made.
Mr. Cook Evans said all the father wanted was
his child, and of course if the address was given, the
child would not be removed to another place.
Mr. Baddeley said there would be no objection to
give the name and address of the party, but he
could not furnish it at present, as he did not know
it. The child had been found by the servant of a
party and taken care of, having stated to the other
children that her father would " kill her." His affi-
davits would show the statement he had made.
Mr. Justice Erle said a parent had a sacred duty,
and was answerable for his conduct. He thought
that the address should be given.
Mr. Baddeley asked his lordship whether he was
not satisfied with the return to the court. He com-
plained of the statements which had gone forth to
the public reflecting on Mr. Roberts, who was a
most respectable man,and whom he (Mr. Baddeley)
had known for some time.
Mr. C. Evans said Mr. Roberts was no doubt zea-
lous for his religion.. Perhaps his lordship could not
give his opinion on the return at present.
Mr. Justice Erle said the return would be suffi-
cient with the address of the child, and, therefore,
it could remain as it was at present.
It was then arranged that the address of the child
should be given to-morrow (this day), on which the
writ of habeas corpus would be complete.