THE BATES CHILDREN.

Evening Star, Issue 3894, 17 August 1875, Page 3

THE BATES CHILDREN.

(The Argus, July 30.)

An application was made yesterday to Mr Justice Barry, in Chambers, by Dr Dobson tor a writ of habeas corpus directed to the Rev. Joseph Dalton, requiring him to produce the bodies of two children named Ellen Bates and Mary Anne Bates, and to show cau r e why the children should not be handed over to the custody of Mrs Mary Ann Smeaton.

Dr Dobson said the application was founded upon an affidavit made by Mrs Smeaton to the following effect James Bates and Ellen Bates, his wife, ;in 18 J3 lived at Brighton near to where Mrs Smeaton was living, and Mrs Smeaton and the Bates’s were on terms of intimacy. About ten years ago Mrg Smeaton, who is a widow, came to Melbourne, but she since had frequently gone to Mrs Bates’s house, and Mrs Bates had frequently come to Melbourne to visit her. About nine months ago Mrs Bates’s husband deserted her, and then Mrs Bates and her children came to Mrs Smeatou’s, and lived in the same house with her in Coromandel place for three months. After that time Mrg Smeaton removed to Coatescottages, off Little Collins street, and Mrs Bates took rooms for herself in Coromandel place. On the 9th May last Mrs Bates was taken by Mrs Smeaton to the Lying-in Hospital, where she was confined of a female child. The two children that Mrs Bates had previously had were taken charge of by Mrs Smeaton. About a fortnight after her confinement Mrs Bates left the h&spital, and came to live at Mrs Smeaton s, where her children were, that time Mrs Bates was very ill, and destitute, and entirely dependent upon Mrs Smeaton and others for her support. About a fortnight afterwards Mrs Bates became ill, and was again taken to the hospital, where she died. Mrs Smeaton went on to say that she had several times gone to the hospital to see Mrs Bates. On one of these occasions Mrs Bates teld her that Mrs Hall had promised to do for her children, but she did not know in what way, whether she would put them in the schools, or keep them as at

home, Mrs Smeaton replied that she thought anyone could get them to the schools, but if ,virs Hail did not keep her promise she (Mrs Smeiton) should always consider the two •hildren as her own. Mr Bates replied, “ All right.” On another occasion, when Mra Bates was at her house, she said, “ If God spares me to get better, Ishalljhave the Rev. Mr Chase in to have the children christened, as I have not got things good enough for them to appear in if I go out to get it done.” Mrs Smeaton went on to say that Mrs Bates had frequently said she wished her children to be brought up in the faith of the Church of England, to which her husband belonged, although she was herself a Roman Catholic \ and that she sent her two eldest children to a Protestant school. Mrs Bates died on the 15th June, and was buried on the 17th. Mrs Smeaton took the children to her house, and a Mra Walker took charge of the baby. Mrs Walker, however, said she was unable to attend to \,he infant, and both she and Mrs Smeaton went to Mr Call, the police magistrate, with the children. Mr Call sent the infant to the Industrial School for seven years, and offered also to send the other two children, but Mra Smeaton refused to part with them. On the 22nd June the Rev. Mr Dalton came to her house accompanied by a policeman, and by Mr Hill, the visitor at the City Court. Mr Dalton demanded the children, but Mrs Smeaton refused to give them up. Mr Dalton then'said that he had received the authority of Mr Call, police magistrate, to take them. Mr Hill rec mmended her to give them up to the priest quietly, as Mr Call had sent him (Mr Hill) to prevent any bother about them. She told the priest that she would not part with the children, as she had promised the mother to take care of them and do the best she could for them. But believing that Mr Call had really sent him, and as Mr Hill advised her to give them up, she did so, thinking she could not help herself, and knowing nothing about the law of the case. Mr

Dalton immediately afterwards took away the childt on, in company with a woman. Mr Dalton (she said) hod promised her that she should be allowed to visit the children; but when she called on him a few days afterwards he said he did not know where the children were. She was anxious to keep the children, as she had none of her own, and she said that she only allowed Mr U*iton to take them away supposing that

he had a legal right to do so, and because he threatened her with legal proceedings if she did not give them up quietly. On the 27th July she called on Mr Dalton, and made a demand in writing for the children. This letter was as follows: —“37 Queen street, Melbourne, 27th July, 1875.—As I am advised that you had no right to take the (children Ellen Bates and Mary Ann Bates from me, and as 1 wish to keep them myself, I do hereby request you to give them up to me, and if you do not do so, I shall apply to the Supreme Court for a writ of habeas corpus to bring them be* fore the Court.” Mr Dalton read the letter, returned it to her, and said, “ Well, apply to the Supreme Court,” and refused to give up the children.

Having read the affidavit, Dr Dobson submitted that a prima facie case had been disclosed to justify the Court in requiring Mr Dalton to produce the children. The only difficulty in the case was that the father of the children was not dead. Nevertheless, he had deserted, them, and might therefore be considered as taking no more interest in them, and therefore the person to whom the mother had entrusted them had a right to their custody. In exparte Glover, 4 Dowling, 291, it was held that though the mother of a natural child could not appoint a testamentary gurdian, she could in her (lifetime leave it to the care of a person from whom the Court would not take it unless very good reasons were shown. The children in this case were only eight and four years old. His Honor inquired what position Mrs Smeaton held in regard to the children. Was she their guardian ? Dr Dobson said that she was; she had been verbally appointed by the mother. There could bo no doubt that the father was entitled to the custody of the children if he chose to come in and claim them ; but if he did not, then the mother was entitled to keep them, and on her death any person whom she appointed. The children were left by Mrs Bates in the care of Mrs Smeaton, and a person had removed them who had no right whatever to them. His Honor said he would grant the writ of habeas, and it could be made returnable that day week.