Report No. 83
IV. The Position before The Judicature Acts
Position upto the sixties.- Upto the sixties of the last century, the father's right was, by and large, predominant in England. To some extent, the rigour of the law was softened by the jurisdiction exercisable by the Court of Chancery in regard to infants. The doctrine of "welfare of the child' was slowly finding its feet, in so far as, along with the right of the father, it was considered relevant to consider the welfare of the minor whenever the circumstances of the case so justified it.
Guardianship by nature and nurture.-The parent, it has been said1, is guardian by nature and nurture-a view taken both by the Court2-12 of Chancery and by the courts of common law.7-12
View of Canonical law.- This doctrine of guardianship "by nature and nurture" would appear to be based upon the doctrine of natural justice as derived from antiquity:-
"De pier ou la mier, mes un etranger ne peut justifier le pois d'un enfant per raison." ("The father or the mother may take possession of a child by reason of nurture but not a stranger"; per Danby, J., Year Book 8 Edw. 4, Wich Pl. 29).
The early canon law (with which equitable views are closely associated) exhibits the same view:13
"Infants infidelium iicite haptizatu, si parentes idest pater, mater, avus, avia val tutores, consentant"; Codex, Juris Canonici, Can, 750, paraphrased.
The Summa Theologica reveals the same mediaeval attitude concerning the rights (both as to religion and as to custody) of parents over their children, in an extreme case, thus:
"It is against natural justice if a child before coming to the use of reason were to be taken away from its parents' custody, or anything done to it against its parents' wish." "A son before coming to the use of reason is under his father's care". [Part II (second part), question 10, Articlel2]; as to religion "Contra justiam naturalem esset, si pueri invitis parentibus baptizarentur"; (Summa Theologica, 3, Question 68, Article 10).
The Custody of Infants Act, 1839 (Talfourd's Act), empowered the Court of Chancery to give the mother14-
(i) custody of her children until the age of seven, and
(ii) access to them until the children come of age.
But a mother guilty of adultery was excluded15 from these rights. The dominance of the father continued.
Case of Agra Ellis.- The cases of Agar-Ellis16 furnish a strong example of the vigorous enforcement of the rights of the parents-especially, the father. The conflict there was between a Protestant father and a Roman Catholic mother, the father asserting his rights in a way in which members of the Court as men disapproved of. Cotton, L.J., expressed his view thus in one of the cases:17
"It has been said that we ought to consider the interest of the ward. Undoubtedly. But this, court holds the 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 him to responsibility of exercising that power which nature has given him by the birth of the child."
And Bowen, L.J. (24 Ch. D. at page 337 Agar-Ellis) observed:
"The court must never forget, and will never forget, first of all, the rights of family life, which are sacred. I think all that could be said on that subject has been said far better than I could repeat it by Kindersley, V.C., in the case of Re Cuitis,18 and the cases to which he there, refers. Those are as to the rights of family life.
Then we must regard the benefit of the infant; but then it must be remembered that if the words 'benefit of the infant' are used in any but the accurate sense, it would be a fallacious test to apply to the way the court exercises its jurisdiction over the infant by way of interference with the father. It is not the benefit to the infant as conceived by the court, but it must be the benefit to the infant having regard to the natural law which points out that the father knows far better19 as a rule what is good for his children than a court of justice can.
But in that case the court was so slow to decide anything as to religion adverse to the possible views of the parent that, whereas Malins, V.C., had made an order that the children should be brought up as members of the Church of England, the Court of Appeal, while arriving at the same result, struck out the declaration, leaving the matter to the decision of the father."
Legislative developments as to custody-1886.- These cases, which excited strong feeling at the time owing to the rival claims of father and mother, were probably one of the causes which led to the insertion of section 5 of the Guardianship of Infants Act, 1886, which provided:2
"The court may, upon the application of the mother of any infant (who may apply without next friend), make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father and may alter, vary, or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it may think just."
Court and (since 1886) by country courts was extended (subject to certain limitation (as to religion of the child):-
"Upon any application by the parent for the production or the custody of a child, if the court is of opinion that the parent ought not to have the custody of the child, and that the child is being brought up in a different religion to that in which the parent has a legal right to require that the child should be brought up, the court shall have power to make such order as it may think fit to secure that the child be brought up in the religion in which the parent has a legal right to require that the child should be brought up.
Nothing in this Act contained shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice."
[Act of 1897]
1. See Carroll, (1930) All ER Rep 210.
2. Hopkins (Ex parte), (1732) 24 ER 1099 LC.
3. Stileman v. Ashdown, (1742) 2 Atk 177: 26 ER 688 LC; Simpson on Infants, (1926), p. 91.
4. De Maneville v. De Maneville, (1804) 32 ER 762 LC.
5. Marquis of Salishary and Ecclesiastical Comrs. (in re:), (1876) 2 Ch D 29 (CA).
6. Ex parte Skinner (1824) 9 Moore CP 278 (Rule at common law).
7, R. v. De Manntyille, (1804) 5 East 221: 1 Smih KB 358: 102 ER 1054 (Child, an infant at the breast).
8. Hakcwill (in re:), (1852) 12 CB 223: 138 ER 888.
9. R. v. Greenhill, (1836) 4 Ad & El 624.
10. R. v. Clarky, Race (in re:), (1857) 7 E&B 186: 119 ER 1217.
11. R v. Howes, Ex parte Burford, (1860) 3 U&E 332: 121 ER 467.
12. Cartlidge v. Cartlidge, (1862) 2 Sw&Tr 567: 164 ER 1117.
13. See Carroll (in re:), 1930 All ER 218.
14. Custody of Infants Act, 1839.
15. Talfourd's Act, 1839 (2 & 3 Vict., C. 54).
16. Agar-Ellis, Agar-Ellis (in re:) v. Lasielles, (1878) 10 Ch P 49: (1883) 24 Ch D 317.
17. Agar-Ellis (in re:), (1883) 24 Ch D 317 (334).
18. Curtis (in re:), (1839) 28 LJ Ch 458; sub nom Curtis v. Curtis, 34 LTOS 10.
19. Emphasis added.
20. Section 5, Guardianship of Infants Act, 1886 (49 & 50 Vict., C. 27).