The main legal point established is that the writ of Habeas Corpus is discretionary and requires sufficient grounds to establish illegal detention, taking into account the rights and responsibilities of parents.

1. The scope of the high prerogative writ of Habeas Corpus as known to English Law, and the grounds on which it should issue are, we think well-settled on the judicial decisions. It is enough to extract the classic observations of Brett, M. R. in In re Agar-ellis v. Lascelles (1883 (24) Law Reports Chancery, 317.) at page 326:

"It is the universal law of England that if any one person alleges that another is under illegal control by anybody, that person, whoever it may be, may apply for a Habeas Corpus and thereupon the person under whose supposed control, or in whose custody, the person is alleged to be illegally and without his consent is brought before the Court. But the question before the Court upon Habeas Corpus is whether the person is in illegal custody without that person's consent."

That was in case where a mother's application that she be allowed the custody and control of her daughter aged nearly 17 years who had been left by the father, under protection of a lady as care-taker, who was proceeding abroad for a few weeks, was dismissed by the Court, on the ground that no grounds have been made out to deprive the father of the exercise of his legitimate rights to direct the education, of his children till they complete 21 years of age. Cotton, L. J. in that case observed:

"It is not in our power to go into the question as to what we think is for the benefit of this ward. The father has not in my opinion forfeited his right to exercise his duties as a father, and we ought not to interfere. It has been said that we ought to consider the interest of the ward. Undoubtedly. But this Court holds this principle that when, by birth, a child is subject to a father, it is for the general interest of families, and for the general interest of children, and really for the interest of the particular infant, that the Court should not, except in very extreme cases, interfere with the discretion of the father, but leave to him the responsibility of exercising that power which nature has given him by the birth of the child. In my opinion we should be breaking through the principle on which this Court has no long acted if we were to be persuaded by any argument addressed to us to interfere in this case and take upon ourselves the duties which the father has to exercise."

And, Bowen, L. J. added:

"This is a case in which, if we were not in a Court of law, but in a court of critics capable of being moved by feelings of favour or disfavour we might be tempted to comment, with more or less severity, upon the way in which, so far as we have heard the story, the father has exercised his parental right. But it seems to me the Court must not allow itself to drift out of the proper course; the Court must not be tempted to interfere with the natural order and course of family life, the very basis of which is the authority of the father, except it be in those special cases in which the state is called upon, for reasons of urgency, to set aside the parental authority and to intervene for itself. I for one should deeply regret the day, if it ever came, when Courts of Law or Equity thought themselves justified in interfering more than is strictly necessary with the private affairs of the people of this country. Both as regards the conduct of private affairs, and of domestic life, the rule is that Courts of Law should not intervene except upon occasion. It is far better that people should be left free, and I do not believe that a Court of Law can bring up a child as successfully as a father, even if the father was exercising his discretion as regards the child in a way which critics might condemn".

Lower down the same Lord Justice observed:

"I believe that the Court has jurisdiction, but it must exercise it with sufficient reason. As the Master of the Rolls said, the interference of the Court may be certainly invoked by reason of other circumstances than those which have been laid down in the classification to which he has alluded. As soon as it