CUSTODY OF A CHILD

Taranaki Daily News, 1 September 1930, Page 5

CUSTODY OF A CHILD

NOVEL POINT OF LAW ARGUED

ORDER FOR ADOPTION ANNULLED. ; ARGUMENT IN SUPREME COURT. Described as a very important point, • preliminary objection to an applica--1 tion for a writ of habeas corpus and subjiciendum was argued before Mr. Justice Ostler in the Supreme Court at New Plymouth on Saturday. An adoption order haying been annulled, William Roy Penwarden, Omata, farmer, asked the judge to grant him the custody of his child, LilaTMary, now aged about five years, this having been refused. It was submitted that a writ could not lie on the ground that there was no illegal custody or unlawful detention. The point was reserved by His Honour, and the hearing, of the merits of the case will be concluded to-day. The facts were that W. R. Penward- • en’s first wife died on August 24, 1926, and on September 10 an order for adop-tion-of his child was made in favouiof the maternal grandmother, Mrs. Sarah Jane Gray, New Plymouth. Early this year Mrs. Gray died and by her will she appointed her daughter Mary Gray testamentary guardian of the child. Probate’of the will was granted. Before the death of Mrs. Gray, Penwarden re-married and the relations with his mother-in-law became etrained. After, the death of Mrs. Gray, Penward- , en and his second wife applied to the Magistrate to have ‘ the 1926 adoption order discharged and that application was granted. The Penwardens then applied to ’ the testamentary guardian V for the child, but .Miss Gray refused to/ give custody. It was in view of this refusal that the present proceedings, were taken. • ■ Mr. R. H. Quilliam supported the application while Mr. C. H. Croker appeared to show cause why it should not be granted. ' Mr. Croker raised a preliminary objection that apart from any inquiry into the- welfare of the child a writ did not lie on the ground that there was no illegal custody or unlawful detention. His Honour asked if that meant that notwithstanding the annulment of the adoption the fact that Miss Gray had become testamentary guardian of the child during the adoption still held good. Counsel held that habeas corpus could apply only when there was illegal detention. Counsel said that was so. tie proceeded to quote authorities for hie view. ANSWER TO - THE' OBJECTION. ' t Upon being called upon to answer the v objection Mr. Quilliam said the question of who was entitled to the custody of a child was one for the discretion of the court and he submitted the proper procedure was to bring the matter by way of habeas corpus; that was the usual method, and, he , submitted, the only way.’ ( 1 ' ’ .His Honour; Must, not you show that to get a writ of’habeas corpus the child is illegally detained?

Counsel submitted the court had to determine whether there was illegal detention. By- virtue of the Infants’ Act, section 22, after annulment, the relations ■ of father and child were restored for all purposes to what they were immediately before the adoption order was made. If a father and mother had ini adoption Order cancelled was it posable a testamentary guardi tn could ex•rcise her powers alongside the natural •rights of the parents’. He submitted it was not. The result of the cancellation of the adoption wa's that the father became the legal father again and as such he had rights entitling him to go to the court in this way., His Honour suggested, if both parties had legal rights |o the child the proper procedure was a motidn under section 5.

Mr. Quilliam, continuing his argument, maintained that to suggest that a testamentary guardian had overriding powers would be to defeat the whole object of the section. He contended the cancellation of the adoption order gave them the right to come before the court in this way. To give proper effect to the order" the father must be given back what he had lost. Mr. Croker in replying pointed out that the father in agreeing to the adoption had made a permanent and absolute surrender of his parental rights to the child. Therefore, when he obtained the order - of l annulment he did so subject to the rights o:f others legally obtained in the meantime. A writ of habeas corpus had never been granted unless there was unlawful detention. “This is a very important, point and I am not prepared to decide it off-hand,” said His Honour. “I would like time to look into the authorities quoted.” Mr. ; Croker: Is it not so important that it should be decided before we go any further? I am prepared to go to Wellington to argue the matter if necessary.

*A MOST UNFORTUNATE THING.” His Honour observed that as far as he could gather from the affidavits there was .no question of unsuitability of character on either' side. The parties were 'highly respectable and it was a most unfortunate thing that the trouble had arisen. If only they were friendly they could be appointed joint guardians and each could have the pleasure of the child. He would reserve the point raised by Mr. Croker and in the meantime would hear argument on the'merit« of the case. Considering the argument was novel Mr. Croker suggested it should be heard in the first instance ‘by the Full Court. It was the first time such a point had been argued. Mr.; Quilliam eaid his client preferred to have the matter settled there and then. His Honour said that if he eventually decided in favour of Mr. Croker’s point he would have wasted his time in hearing the merits of the case discussed, but he was prepared to do that rather than put the parties to the expense of going to Wellington. " Mr. Quilliam said that if the Court decided to give the custody to Penwarden he would undertake that'any income the child was entitled to from the estates of her mother or grandfather should ; be paid to a trustee and allowed to accumulate until the child was 21. His Honour said he gathered from the affidavits that the father was genuinely fond of the child and had not. readily consented to its adoption. Mr. Quilliam pointed out that the contest - was not between the adopted parent -and the applicant. The facts were plain that Penwarden yielded to pressure at a time of great distress when he agreed to hand over the child. It was clear from one of the affidavits that Mrs. Gray had urged most persistently that the adoption should be completed. - Counsel asked that this should be taken .into account when the court considered t,he matter. The request had come from Mrs. Gray at a time •f great distress for Penwfrpden and had it not been for certain '.promises made regarding the way the njwP.l was to be'Brought up he would hbver have ■.'< ...Zu.

consented to surrender her. , - Until November. 1027, he continued-id visit the child and was received warmly into his mother-in-law’s house. There could be no question, suggested counsel; that it was Pen wardens decision to remarry that had caused the trouble between him and the Grays. The fact that he was afterwards refused admission to the house had not been contradicted. Counsel proceeded to give reasons wily it would be in the child’s best interests for her to be with her father. Mr. Croker emphasised the point that the father had surrendered all parental rights when he agreed to the adoption. He pointed out that Mrs. Sarah Penwarden, the child’s other grandmother, could have taken charge of the child on its mother’s death, but she did not, and counsel suggested the reason was that it was the dying wish of the mother that the little girl should, be taken charge of by the family. He did not wish to refer further to the trouble between the two families, except to say that it took two to make a quarrel and, even if the Grays were responsible in the beginning, it took’ two to keep a quarrel permanent. His Honour commented that it almost looked as though counsel’s clients were ready for. a .reconciliation. Mr. Croker said his side had at all times been ready to give the father ■access to the girl. Mrs. Sarah Gray, with whom the quarrel took place was dead.