In Re Besant: CA 9 Apr 1879

The appellant challenged an order removing her children after she had been prosecuted for publishing an obscene libel, in the form of a book on abortion.
Held: The appeal was dismissed. The court removed the daughter of Annie Besant and the Rev Frank Besant from the custody of the former, notwithstanding that the parties had agreed that she should have custody.
James LJ: ‘We have it before us that the Appellant was found guilty by a jury of publishing a work stigmatized by them as being calculated to deprave public morals, and that she, in spite of that finding, determined to persist, and did persist, in publishing that work. That the jury were right in their finding the Judges of the Court of Queen’s Bench had no doubt, and we are constrained to say that we entirely concur. The other works charged are substantially of the same character. It is impossible for us not to feel that the conduct of the Appellant in writing and publishing such works is so repugnant, so abhorrent to the feelings of the great majority of decent Englishmen and Englishwomen, and would be regarded by them with such disgust, not as matters of opinion, but as violations of morality, decency, and womanly propriety, that the future of a girl brought up in association with such a propaganda would be incalculably prejudiced. The Appellant contends that these are unfounded and unwarranted antipathies and prejudices, like those with which rival sects were wont to regard one another. But the Court cannot allow its ward to run the risk of being brought up, or growing up, in opposition to the views of mankind generally as to what is moral, what is decent, what is womanly or proper, merely because her mother differs from those views and hopes that by the efforts of herself and her fellow-propagandists the world will be some day converted. If the ward were allowed to remain with the mother, it is possible, and, perhaps, not improbable, that she would grow up to be the writer and publisher of such works as those before us. From such a possible future the Master of the Rolls thought it his duty to protect her, and we have no hesitation in saying that we entirely concur with him.’
An agreement by a father to part with custody was void, being contrary to public policy.

Judges:

James Baggallay and Bramwell LJJ

Citations:

(1879) 11 Ch D 508

Jurisdiction:

England and Wales

Citing:

Appeal fromIn Re Besant ChD 18-May-1878
Mrs Besant had been prosecuted for publishing an obscene libel in the form of a book on abortion.
Held: The publication of the book was in itself sufficient grounds for removing Mrs Besant’s seven year old daughter from her mother’s custody. . .

Cited by:

Appealed toIn Re Besant ChD 18-May-1878
Mrs Besant had been prosecuted for publishing an obscene libel in the form of a book on abortion.
Held: The publication of the book was in itself sufficient grounds for removing Mrs Besant’s seven year old daughter from her mother’s custody. . .
CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 05 June 2022; Ref: scu.223710