CONTROL OF TWO CHILDREN

Press, Volume LXXIX, Issue 23972, 12 June 1943, Page 6

CONTROL OF TWO CHILDREN

Court’s Dismissal Of Appeal

QUESTION OF RELIGIOUS INSTRUCTION (P.A.) WELLINGTON, June 11. The Court of Appeal to-day dismissed an appeal by Mathew Joseph Fogarty, of Geraldine, Roman Catholic priest, against Agnes Isabella Prouting, of Belfield, Orari, a married woman. The case arose from habeas corpus proceedings taken by the appellant for the custody and control of a boy, aged 13, and a girl, aged eight. These children had been in the home of the Proutings for the last four years. The respondent was a lifelong friend of the children’s mother, who, before her death, asked her to look after them. • Mr Justice Northcroft in the Lower Court held that for the. first two years of the period they were with the Proutings with the approval of their father, and then, upon his death, for three or four months, with the acquiescence of the appellant, and only when he was prevented from giving them religious instruction in the Catholic faith did he take any steps to remove them from the Proutings. The children’s father had left a will directing that they be brought up in the Roman Catholic religion and appointing the appellant their trustee. He was personally unable to give them a home, but stated that under the direction of the present Roman Catholic Bishop of the Diocese of Christchurch he had arranged for the children to be cared for by a niece by marriage of their father, a widow, with one daughter, aged 13.

The lower Court, stated that it was satisfied that they were being well and carefully brought up by the Proutings, and it had not been proved that the present upbringing was unsuitable, or that it justified the Court on any material grounds ordering them to be handed over to the custody of the appellant. Their mother nad allowed them to be baptised in the Roman Catholic Church, and then had them brought up as Protestants: their father had them baptised in his church, but did not prevent them from being brought up as Protestants, although on his death-bed he directed that they should be brought up in his faith. Mr Justice Northcroft did not think that he was required to decide which church was the more suitable for their religious instruction, but was concerned onlv with their present physical welfare. The Court of Appeal to-day delivered separate judgments, and in the result the Court held (the Chief Justice, the Rt. Hon. Sir Michael Myers, dissenting) that the appeal must be dismissed. The judgment of the Court dealt mainly with the facts of the case, and the Court found that the father’s rights as to the religious instruction of the children had in the circumstances been abandoned, and that the welfare of the children required that the custody remain with the respondent. The Chief Justice, in his dissenting judgment, held that the father's rights had not been abandoned and that on the grounds of both religion and welfare custody should be taken from the respondent, although in the circumstances he would suggest that the children remain with the respondent subject to direction as to icligious instruction and education by the appellant. _______