S.G. Sale, J.

1. In this matter a rule was obtained by Assam, a Chinaman,and Levee, his wife, the natural parents of a girl named Joshy, calling uponMr. and Mrs. John Allen to shew cause why they should not deliver the childJoshy, now in their custody, to her father and mother, and why they should notpay the costs of the application. A further order was made that Mr. and Mrs.Allen should produce the child on the hearing of the rule. Cause has now beenshown on behalf of Mr. and Mrs. Allen and the child has been produced in Court.

2. Affidavits by Mrs. Allen and by three other persons havebeen read in answer to the allegations made by the petitioners, and Counselhave been heard on behalf of both parties. Mr. Apcar, in the course of hisreply on behalf of the petitioners, stated that there were certain allegationsmade in the affidavits used in showing cause which he was desirous ofanswering. These allegations were in respect of the conduct of another daughterof the petitioners, and also as to what is alleged to be the object of thepetitioners in seeking to recover custody of the child. It seemed to meinconvenient that fresh affidavits should be filed at that stage of the caseafter Counsel for the parties showing cause had been heard. I thought itbetter, however, not to shut out any evidence the petitioners might desire toadduce, and further affidavits have now been road in reply on the part of thepetitioners. I ought also to say that I intimated to the parties that, ifeither side desired to cross-examine all or any of the persons who have madeaffidavits in this matter, I should allow them an opportunity for so doing; butneither party has asked that this course should be adopted. The question nowis, whether, on all the materials before the Court, an order ought to be madeinterfering with the present custody of the girl Joshy. The allegations uponwhich the rule was obtained are contained in the verified petition of Assam, aChinaman, and his wife Levee, which states that the infant Joshy, the daughterof the petitioners, was of the age of nine years and eight months, having beenborn, in September 1885; that the petitioners are both of them natives ofChina, although at present residing in Calcutta; that they had for a long timebeen acquainted with Mr. and Mrs. Allen who, two years ago, requested thepetitioners to allow them to become god parents of the girl Joshy; thatthereupon Assam in consultation with his wife Levee and with her consent, hadthe girl christened, Mr. and Mrs. Allen becoming her god-parents; that in March1893, Assam, having occasion to go" to Penang, left his daughter Joshyunder the care and protection of Mr. and Mrs. Allen; that in March of thefollowing year Assam returned to Calcutta and demanded restoration of the girl,which was declined by Mr. and Mrs. Allen; that in August 1894 he institutedproceedings in the Police Court on a charge against Mr. and Mrs. Allen ofwrongfully detaining the child for an improper purpose, which charge wasdismissed; that, on the 20th May 1895, he filed his petition in this Court andobtained a rule. The allegations made in the petition are of the vaguestpossible character, and certainly fail to explain satisfactorily why theparents of the child should have consented to have the girl christened, if theobject was to leave her only temporarily in the care and charge of Mr. and Mrs.Allen. But a completely different complexion is placed upon the case by theaffidavits of Mrs. Allen and the other deponents, viz., Elizabeth Mann, EmmaAkhai and Alfred Whyte. These affidavits show that so far from the custodyhaving been intended by the parents to be temporary only, the parents haddeliberately and finally relinquished their right of control of the child infavour of Mr. and Mrs. Allen, and had made over the girl to them to be broughtup and educated and cared for by them as their own adopted child. Thecircumstances under which the child was made over to Mr. and Mrs. Allen areshown to be these: The parents professed themselves to be without means andunable to support and maintain the girl, and they therefore requested Mr. andMrs. Allen to take over the girl to be brought up as a member of their ownfamily, knowing at the time that Mrs. Allen had expressed a desire to take asuitable child in adoption. Thereupon, in January 1893, the girl was handedover to Mr. and Mrs. Allen, and on the 18th January she was, as appears fromthe certificate of baptism annexed to the affidavit of Mrs. Allen, christenedat the Roman Catholic Church of the Sacred Heart of Jesus in the presence ofthe parents under the name of Minnie Allen; Mrs. Allen standing as god-mother.From the time the girl was so made over to them, she has resided with Mr. andMrs. Allen as their daughter under the name of Minnie Allen, and no suggestionhas ever been made that the girl is not properly and affectionately cared forand tended, or that she is unhappy where she is, or that any circumstances havearisen which, for the welfare or in the interest of the child, render it desirablethat she should be restored to her parents. Mr. Allen, it appears, is by birtha Chinaman. He came over to this country early in life and has followed theprofession of a photographer. Several years ago he became a Christian andmarried his present wife, who is also a Christian; the ceremony being performedat the Roman Catholic Cathedral at Moorgehatta in Calcutta; and they havethroughout their married life lived together as Christians and have adoptedEuropean habits and customs in their mode of living. They are people in awell-to-do position and have both the means and the desire to bring up the girlin a respectable and comfortable manner. I have no doubt whatever that thestory told by Mrs. Allen and her witnesses is the correct one, as to thecircumstances under which the girl came into her custody, and the questionwhich I have to determine is, whether, having regard to the law applicable tothe case, I ought to interfere with the present custody and control of thechild.

3. Mr. Apcar, in his argument on behalf of the parents ofthe girl, relied mainly on two propositions of law : First of all he said thatthe rights of parents regarding the custody and control of their offspring areparamount, and that the Court would not interfere with these rights, except onvery strong grounds showing actual misconduct on the part of the parents.Secondly, he contended that, even if I were of opinion that the arrangementunder which Mr. and Mrs. Allen alleged the child had been made over to them wasproved, still such an arrangement was revocable, and the Court would not holdthe parents bound thereby, but would assist them in regaining the custody oftheir child and in re-asserting their parental authority.

4. As regards the first proposition, it was no doubt thepractice in the Common Law Courts not to interfere with the rights of parentsas to the custody of their children except on very strong grounds, but there isalso no doubt that the practice in the Courts of Chancery has been different,and that in accordance with that practice, and in the exercise of a largediscretion, the Courts have interfered with the parents right to the custodyof their children, when it was clearly shown that the safety or welfare of thechildren required such interference. It has been pointed out that the rightsand privileges of parents as to the control and custody of their children wereto be exercised, not in the interest and for the benefit of the parents, but inthe interest and for the benefit of the children : that is the principle whichthe Chancery Courts have followed in cases where they have been asked toexercise their powers of interference. The modern doctrine as regards theprinciple on which the Courts will interfere is thus stated in the 2nd Vol. ofSeton on Decrees, p. 884: "In equity a discretionary power has beenexercised to control the fathers or guardians legal rights of custody wheretheir capricious exercise would materially interfere with the happiness andwelfare of the child, or where such rights have been forfeited by conduct oracquiescence, or where the father has so conducted himself or is placed in sucha position as to render it, not merely better for the children, but essentialto their safety or to their welfare in some very serious and important respect,that their rights should be superseded or interfered with. "And the caseof Queen v. Gyngall IL.R.(1893) Q.B. , Vol. II, 232 illustrates the extent towhich the Courts have now gone in exercising their power of interference with theparents custody of a child, when the welfare of the child demanded it. In thatcase the mother was the applicant for the restoration to her of a child whichwas then in the custody of a Lady Superintendent of a Conventual Homo. Therewas no allegation of any misconduct, or any moral unfitness on the part of themother disentitling her to the custody of the child, nor had the mother in anysense abandoned her right to the control and custody of her child; yet theCourt said that the mothers position, through no fault of her own, was such asregards the circumstances under which she was earning her livelihood, and theopportunities she would have of continuing the education of the child, that itwould be injurious to the welfare and interest of the child that her presentcustody should be interfered with. And at page 242 the Master of the Bollssays: "That its jurisdiction to interfere with the parental right is notconfined, as was argued, to cases where there has been misconduct on the partof the parent, seems to me clear from many cases. In the case of In re Fynn 2De. G. and S. 457, Knight Bruce, V.C. said: Before this jurisdiction can becalled into action, it (i.e., the Court) must be satisfied, not only that ithas the means of acting safely and efficiently, but also that the father has soconducted himself, or has shown himself, to be a person of such a description,or is placed in such a position as to render it, not merely better for thechildren, but essential to their safety or to their welfare, in some veryserious and important respect, that his rights should be treated as lost orsuspended-should be superseded or interfered with. If the word essential istoo strong an expression, it is not much too strong. That is a clear statementthat the Court must exercise this jurisdiction with great care, and can onlyact when it is shown that either the conduct of the parent, or the descriptionof person he is, or the position in which he is placed, is such as to renderit, not merely better but-I will not say essential, but - clearly right for thewelfare of the child, in some very serious and important respect, that theparents rights should be suspended or superseded; but that where it is soshown the Court will exercise its jurisdiction accordingly."

5. That is the principle applicable to the case of parentswho have not, by their own act, waived or abandoned, in favour of thirdpersons, their parental authority or right.

6. But the second proposition contended for, namely, that anarrangement under which the parents have agreed to abandon the custody of theirchild to a third person is a revocable arrangement, requires, I think, thisvery important qualification, that the Court will not allow parents, who haveabandoned the custody of their children to third persons, to attemptcapriciously to re-assert their rights without showing that the welfare of thechildren warrants and requires such action on their part. Moreover the policyof the legislature, as shown by the various Acts passed in England for theregulation of the custody of infants, and by the Guardian and Wards Act in thiscountry, appears to be to invest the Courts with a large discretion to beexercised for the protection of the welfare and well-being of children. I haveno doubt that in a case such as the present, where the parents, in pursuance ofan arrangement deliberately entered into by them, have resigned their parentalauthority, the Court in exercising its powers of interference with the custodyof a child at the instance of the parents should be guided mainly, if notentirely, by what it conceives to be best for the welfare and well-being of thechild.

7. In this case what I find is that the parents, on the pleaof being unable to maintain and support the child, agree to make it over topersons who they have reason to suppose will treat the child kindly andaffectionately, intending that the child should become and remain a member ofthe new guardians family. Then, without any explanation or any suggestion of achange in the circumstances requiring the re-assertion of the parentalauthority, the parents come forward and ask to have the care and custody of thechild re-committed to them. They do not pretend that the interest of the childin any sense requires that its custody should now be changed, nor do they saythat the welfare of the child demands the re-exercise of the parental authoritywhich they abandoned two-and-a-half years ago.

8. I cannot moreover close my eyes to the fact that inmaking the application they put forward an untrue and totally misleadingaccount as to the circumstances under which the child came under the control ofMr. and Mrs. Allen. There can, I think be no doubt that the parents of the girlare in an entirely impecunious condition. The only regular income which theypossess is a salary of Rs. 10 per month, which the mother receives for herservices as an ayah, and nothing else of a definite character is alleged on thepart of the parents to show that they are possessed of any means whatever toenable them to support the child.

9. On the other hand, there is no doubt the girl has for thelast two-and-a-half years been brought up in a comfortable manner. She hasreceived a Christian training, and has been educated in the Loretto School. Iam now asked to make an order which will have the effect of depriving the girlof these advantages.

10. I do not think it was intended, on the part of Mr. andMrs. Allen, that it should be alleged that the object of the parents in seekingto obtain the custody of this child was that she might be devoted to a life ofimmorality; but having regard to all the circumstances, I cannot help thinkingthat the parents in making the present application are actuated, not by adesire to secure the future well-being of the child, but by a hope of obtaininga pecuniary advantage for themselves, probably through some matrimonialalliance which they are anxious to promote. To remove the girl from her presentcustody would be to expose her to a method and mode of life for which her up-bringingand course of training for the past two-and-a-half years has rendered herwholly unfit. I think I should be doing a wrong to the child if, upon the factsbefore me, I were to make an order to restore her to her parents.

11. This rule must therefore be discharged.

S.G. Sale, J.(to Mr. Dunne.)

12. Do you press for costs

Mr. Dunne

13. I am instructed to press for costs.

S.G. Sale, J.

14. Then the rule will be discharged with costs.

.

In Re: Joshy Assam(05.06.1895 - CALHC)