CAMPBELL ተ. MACKAY. 1837. Jan. 16. [ 32 ] The facts of the case, and the general effect of the evidence on both sides, are stated and summed up in the judgment. THE LORD CHANCELLOR: * The petition, upon which the order under appeal was obtained, stated that it was necessary for the health of the children that they should reside in the south of Europe, or in some climate warmer than that of England. The original order permitted Lady Dorothea to take them "to the south of Europe, or elsewhere, out of the jurisdiction;" but as it was subsequently altered, and as it now stands, it permits the infants to reside in France or Italy. With this order, which goes on to direct the usual inquiries relative to the ages and fortunes of the infants, and the sums that would be proper to be allowed for their maintenance, respectively, no scheme is connected for the education and superintendence of the children; no undertaking or security is to be given, that they shall be brought back within a limited time; and no direction or provision is introduced, by which the Court may be informed at any future period of their actual condition or progress. [His Lordship here stated in detail the substance of the affidavits which had been read, as well in support of the appeal, as in opposition to it, and proceeded:] Such is the evidence upon which I am required to come to a decision which may most materially affect the future prospects of these children; and the first question is, whether such a case is made out as to justify me in permitting the children to be kept abroad and out of the jurisdiction of the Court. It cannot be now said that the Court will not in any case permit its wards to be taken out of the country. No doubt, circumstances may arise under which it would be most inexpedient to adhere strictly to the general rule against permitting an infant ward of the Court to be taken out of the jurisdiction; because cases may occur in which the health, and possibly the life of the ward, may depend upon his removal to another climate. Such instances, however, are, I trust, very rare; and so lately as in the year 1801, in the case of Mountstuart v. Mountstuart (1) Lord ELDON appears to have said that the (1) 6 Ves. 363. ፖ. MACKAY. [ *33 ] Court never makes an order for taking the infant out of the CAMPBELL jurisdiction. Subsequent decisions show that exceptions are sometimes made to the rule, *but such exceptions are and ought to be very rare. Since I have held the Great Seal I have had reason to lament that the rule has not been more strictly adhered to. In a case referred to in a note in Mr. Jacob's Reports (1) it will be seen with what difficulty Lord ELDON was induced to permit a father to take his child, a ward of the Court, out of the jurisdiction, and with what guards he thought it necessary to protect the infant against the probable consequences of that permission; and in De Manneville v. De Manneville (2) his Lordship restrained a father from removing his child to a foreign country. Independently of this well established rule of the Court, and the principle upon which it proceeds, I am convinced that scarcely any thing can be more injurious to the future prospects of English children, and particularly of English boys, than a permanent residence abroad. Without the proper opportunities of attending the religious service of the church to which they belong, separated from their natural connections, estranged from the members of their own families, withdrawn from those courses of education which their contemporaries are pursuing, and accustomed to habits and manners which are not those of their own country, they must be becoming, from day to day, less and less adapted to the position which, it is to be wished, they should hereafter occupy in their native land. In addition to all these considerations I find, in the present case, the most anxious wishes expressed by the father of these children, that they should be settled in this country and receive a purely English education, and that the son should pursue that profession in which the father had himself gained considerable emoluments and the highest honours. It is needless to observe that the law, which permits the father to appoint the guardians * (1) In Jac. 264, where the case is the case under its actual title of Jackson v. Hankey, taken from the (2) 7 R. R. 340 (10 Ves. 52). [34] of his children, will pay the highest respect to the expression of his wishes as to the mode of their education. All these considerations, however, must yield, and the hopes, wishes, and projects of the father must be disappointed, if an irresistible necessity be proved to exist for the permanent residence of the children abroad. I say permanent, because if the grounds, alleged in this case, for the permission to leave the country be sufficient for that purpose, there is no reasonable hope that they will cease to exist during the minority of the wards. The ground on which the permission is sought is not any accidental disease, which a temporary residence abroad may help to eradicate; but supposed infirmities in the constitutions of three of the children, all of different kinds, but all supposed to lead to the unusual result of an incapacity, without danger, of living in the climate of this country. Such being my view of the evil not only likely but, in my opinion, certain to result from the long continuance of the permission granted by the VICE-CHANCELLOR's order, I must next consider the weight and effect of the medical evidence, in order to ascertain whether the danger be such as to justify me in exposing these wards, and particularly the boy, to evils so certain and so great. [His Lordship here entered into a minute and critical examination of a number of affidavits made by medical gentlemen, who had been professionally consulted with respect to the health of the children, and their supposed constitutional tendencies; and came to the conclusion that although the evidence was in some degree conflicting, it decidedly preponderated in favour of the opinion that a residence in the South of England, especially in some spot where the air was mild and dry, would in all probability be as well suited to the constitutions of the children, as any place which could be fixed upon in France or Italy. His Lordship further remarked that the apparent discrepancy in the affidavits upon this point might be explained by the circumstance that most of those medical gentlemen who were disposed to recommend a residence abroad, appeared to have founded their opinions, rather upon the statements which they had received from Lady Dorothea, with respect to her past v. MACKAY. experience, than upon personal observation and knowledge. CAMPBELL His Lordship next proceeded to examine the amount and value of the evidence alleged to be furnished by the experience of the past; and arrived at the conclusion that the evidence with respect to the result of that experience was far from being clear or decisive. His Lordship then continued as follows:] I am therefore of opinion, that there is not in the medical testimony, or in the evidence of the result of past experience sufficient to justify me, by affirming the order of the VICECHANCELLOR, in sanctioning the permanent residence of these children abroad, and thereby exposing them to the unquestionable evils of such a course. To the evidence furnished by Lady Dorothea herself, I might have added, indeed, the fact that, after having obtained the order of the VICE-CHANCELLOR, upon the ground that a milder, drier, and warmer climate was required for the children, some of the medical opinions specifying the south of France or Italy, I find them passing the winter in the neighbourhood of Paris. Having come to this conclusion upon the principal question raised by the order of the VICE-CHANCELLOR, I need do no more than mention some other matters, as to which I should have thought it necessary to vary the order, even if I had concurred. in the question of residence abroad. The effect of that order is to place the maintenance and education of the children absolutely in the hands of one of four guardians, the other three dissenting, and without any inquiry before the Master, as to a scheme for their maintenance and education; and in permitting that one guardian to take the children abroad, it does not provide any security for their return, or make any provision by which the Court could, at any time, be informed of the state of the children, or the progress of their education, a matter which, in the case in Mr. Jacob's Reports (1), Lord ELDON thought necessary even in the case of a father. I am aware that these directions were not asked of the VICECHANCELLOR; and I mention the circumstance only that the form of the order may not be drawn into precedent. I have now gone through this most distressing case. (1) Post, p. 7. I must [ 36 ] υ. MACKAY. CAMPBELL discharge so much of the VICE-CHANCELLOR's order as permits the residence abroad. The rest of the order may stand; but there must be added to it that, which cannot be dispensed with when guardians do not agree as to the management of their wards, namely, a reference to the Master to approve of a scheme for the maintenance and education of the children. [ *37 ] [ *38 ] I do not mean to leave to the Master the reconsideration of the question as to residence abroad. The order, therefore must direct the Master, in approving of any scheme, to consider that the future residence of the children will be in this country. I am not desirous however of requiring the immediate return of the children. They have been taken abroad under the authority of the Court, and a hurried return must be inconvenient and, at this season of the year, might be hazardous. It will be better to let the severity of the winter pass away, and to take the first favourable opportunity on the return of the spring, to settle the journey to this country. There is nothing to apprehend from prolonging their residence abroad, until it can be conveniently and satisfactorily terminated. It is to the protracted and indefinite duration of it that the objections apply. I cannot dismiss this subject without expressing my earnest hope that, now that the important subject of contest is disposed of, the guardians of these children will endeavour, by coming to a proper understanding among themselves, to co-operate for the welfare of their wards. Without such co-operation, the care and protection of this Court must be comparatively ineffectual. I have no reason to doubt, but on the contrary I see much reason to be convinced of the devotion and affection of Lady Dorothea towards her children; and possibly that very devotion and affection may have led her into error. But there certainly appears from her correspondence to be much misconception as to the position in which she is placed, with respect to her children. Every attention ought to be paid to the opinions and to the wishes of a mother; but in point of authority she is upon an equality with the three other guardians. There is, therefore, nothing to justify any attempt on her part to oppose their interference, or to dispute their authority: *and I hope that upon reflection, Lady Dorothea will see reason to think that |