Rex v Greenhill: 29 Jan 1836

The children were all under six years of age and were with their mother. Their father obtained an order for them to be delivered up to him and their mother applied for that to be set aside.
Held: She was unsuccessful, a father being entitled to custody in the absence of any sufficient reason to separate the children from him.
‘When an infant is brought before the court by habeas corpus, if he be of an age to exercise a choice, the court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the court must make an order for his being placed in proper custody.’ (Lord Denman CJ)
‘The practice in such cases is that, if the children be of a proper age, the court gives them their election as to the custody in which they will be; if not, the court takes care that they be delivered into the proper custody.’ (Littledale J)
‘A habeas corpus proceeds on the fact of an illegal restraint. When the writ is obeyed, and the party brought up is capable of using a discretion, the rule is simple, and disposes of many cases, namely, that the individual who has been under the restraint is declared at liberty; and the court will even direct that the party shall be attended home by an officer, to make the order effectual. But, where the person is too young to have a choice, we must refer to legal principles to see who is entitled to the custody . . ‘ (Williams J)
‘In general, where the party brought up by habeas corpus is competent to exercise a discretion on [custody], the court merely takes care that the option shall be left free . . But where the age is not such as to allow the exercise of a discretion, and there is a controversy as to the custody, the court must decide . . ‘ (Coleridge J)


Lord Denman Cj, Williams J, Coleridge J


[1836] EngR 373, (1836) 4 Ad and E 624, (1836) 111 ER 922




England and Wales

Cited by:

AppliedRegina v Maria Clarke 21-Jan-1857
The court was asked whether the ten year old girl’s widowed mother, as her guardian for nurture, had a legal right to custody against the wishes of the girl, however intelligent she was, or whether the court was bound to examine the child to . .
CitedThomasset v Thomasset CA 1894
The machinery of enforcement of payment of maintenance was laid down in the Poor Laws: ‘As regards maintenance, the parents’ obligations were measured both at law and in equity by the Poor Laws’.
After quoting Coleridge J in Greenhill, Lindley . .
CitedIn re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.


Updated: 19 April 2022; Ref: scu.314705