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Report No. 83

1.13. Legislative trends.-

In the first place, there has been an increasing emphasis on giving the mother, the right to apply for custody. In England, this trend took the shape of legislation passed in 1829,1873 and 1925, giving increasing recognition to the mother's light and culminating in the statutory provision now to be found in the Act of 1973,1 which specifically provides that "in relation to the custody or upbringing of a minor and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the name rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and exercisable by either without the other. If they disagree, either may apply to a court for its discretion".

This is certainly a far cry from the nineteenth century attitude when Courts were persuaded only with some difficulty to decline to enforce the father's claim to custody.

The second trend, which was a logical consequence of the increasing powers which the Courts had come to acquire-was the evolution of a principle upon which to adjudicate such disputes. Here we have the principle of the child's welfare which, in the course of time, was held to override considerations such as the father's "right". Thus, equality was created between the two parents and the welfare of the child was placed in the forefront.

Thirdly, with increasing complexity in family relations, it has become necessary in certain countries to give persons and bodies outside the family unit powers to intervene in the interests of the children. In the competition between parents and non-parents, again,2 the welfare of the child is the first and paramount consideration.

Fourthly, we come across legislation vesting in local authorities certain functions in relation to the care of children. Such authorities may be ordered by the Court to care for, or supervise, a child whose home circumstances, upbringing, education or behaviour have been found unsatisfactory. Such provisions, while appearing to be qualifications and restrictions on the rights of the parent, really act as a useful inducement for the observance of parental responsibilities.

1. Section 1(1), Guardianship Act, 1973. See further Chapter 6, infra, and Appendix 3.

2. Cf. I. v. C., (1969) 1 All ER 788 (House of Lords).

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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