Report No. 83
V. Position after The Judicature Acts
Position after Judicature Act.- After the Judicature Acts, the Court of King's Bench, which had previously acted on the strict common law views of parental rights, was enabled, by the fusion of law and equity prevailing, to add to its powers the equitable view of the Court of Chancery representing the King as parents patriae1. The Judicature Act expressly provided that equity shall prevail. But, the court still vigorously enforced the right of the parents, especially of the father, to control the religious education of a young child.2
Provisions as to claims for custody.- However, since the middle of the nineteenth century, Parliament has intervened in a series of statutes, the effect of which has been to whittle down the father's rights further and also to give the mother positive rights to custody which even equity did not accord to her.3
The process of reform initiated4 in 1839 was gathering momentum.
Custody of Infants Act, 1873.- This Act extended the principal of Talfourd's Act of 1839, by empowering the court5 to give the mother custody until the child reached the age of 16. It did not, however, repeat the proviso relating to her adultery. Section 2, which is still in force, introduced a further reform, which had long been overdue, by enacting that agreements as to custody or control in separation deeds (which had formerly been void as contrary to public policy) should be enforceable so long as they were for the child's benefit.
Guardianship of Infants Act, 1886.- This further extended the provisions of the earlier Acts by empowering the Court to give the mother custody of her children until they reached the age of 21. Furthermore, the father was now stopped from defeating the mother's rights after his death by appointing a testamentary guardian, for it was enacted that the mother was to act jointly with any guardian so appointed, and for the first time she herself was given limited powers to appoint testamentary guardians.
Custody of Children Act, 1891.- This Act was passed as the direct result of a number of cases in which parents had succeeded in recovering from Dr. Barnardo children whom they had placed in his now famous "homes", or whom they had abandoned and he had taken. It provides that if a parent has abandoned or deserted his (or her) child, the burden shall shift to him to prove that he is fit to have custody of the child claimed and that the court may refuse to give him possession of the child altogether (section 1).
Moreover, if at the time of the parent's application for custody the child is being brought up by another person, the court may now, upon awarding custody to the parent, order him to pay the whole or part of the costs incurred in bringing it up (section 2).
Guardianship of Infants Act, 1925.- It may be noted that the Act of 1925 gave statutory effect to the rule that in any dispute relating to a child the court must regard its welfare as the first and paramount consideration. It also completed the process of assimilation of the parents' rights by enacting that neither the father nor the mother should from any other point of view be regarded as having a claim superior to the other and by giving to the mother the same right to appoint testamentary guardians as the father. Jurisdiction to make orders relating to custody etc., which had formerly been exercisable only by the High Court and (since 1886) by county courts was extended (subject to certain limitations) to magistrates' courts.
How far welfare of child paramount in Chancery.- There is some controversy as to the extent to which the principle of "welfare" was regarded as paramount in Chancery. Speaking of the Guardianship Act, 1925, Lord Donovan remarked in 1969, that it seems "incredible" that Parliament should have passed such an enactment as section 1 of the Act of 1925, if the position were that it "made no difference at all to the law as already expounded by the judges"6. He did not agree that the Act "enacted no new law".
On the other hand, Lord Upjohn maintained that the Act "enshrined the view of the Chancery Courts",7 and Lord Guest apparently agreed with him.8
On balance, it would seem that there was some lingering uncertainty (when the Bill was drafted) as to the extent to which the "welfare" principle had encroached on basic parental rights.
In the Act of 1925, the language of the opening section-"Where in any proceeding before "any court the custody or upbringing of an infant is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration."-seemed to place the matter beyond all doubt. Yet, astonishingly, this did not prove to be so. Another forty-four years were to pass9 before it was settled that welfare considerations really must predominate in all custody proceedings.
1. Cf. section 44, Supreme Court of Judicature Consolidation Act, 1925.
2. Carrall (in re:), 1930 All ER Rep 200 (201).
3. Bromley Family Law, (1971), pp. 269-270.
4. Custody of Infants Act, 1839.
5. Bromley Family Law, (1971), pp. 269-270.
6. J. v. C., 1970 AC 668 (727D): (1969) 1 All ER 788 (834, 835).
7. J. v. C., 1970 AC 668 (724E).
8. J. v. C., 1970 AC 668 (607F).
9. J. v. C., 1970 AC 668.