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Report No. 83

X. Children's Acts

Side by side with these developments as to guardianship and custody, legislative measures for the welfare of children have come in quick succession. With the passage of the latest Act-Children Act, 1975-this branch of the law has become the most complex.

Originally, legislation for children provided for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected and delinquent children and for the trial of the later. The Children Acts contain elaborate provisions for the establishment of a specialised machinery in terms of juvenile/children's courts, remand/ observation homes, certified/approved/special schools, probation and after-care services. Besides, the Acts envisage an effective utilisation of voluntary welfare agencies at various stages of apprehension, treatment and rehabilitation of children in need of care and protection.

Children Act of 1975.-The Children Act, 1975 expanded the scope of this legislation. Its provisions may be thus summarised, so far as they concern the position in England

(i) The Act provides a means whereby, as an alternative to adoption, relatives and others looking after children on a long term basis can apply for and obtain the legal custody of the children. Such persons may apply for, what is called, a "custodianship" order and this vests "legal custody" of the child in the applicant, who becomes known as the child's "custodian".

The Act thus introduces a new concept. A "custodian" appears to be in a similar position to a parent having custody of his child, but the Act deliberately refrains from giving him the designation "guardian". "Custodianship" may be said to be a new form of guardianship though giving less rights and powers than guardianship, and to be similar to, but not identical with, custody.

(ii) Section 33 provides that, on the application of any qualified person who is not the mother or father of the child, the court may make a custodianship order vesting legal custody of the child in the applicant. "Legal custody" is defined in section 86. A person is "qualified" when-

(i) he is a relative or step-parent and he has the consent of a person with custody and the child has had his home with him for the three months preceding the application ("though step-parents are not qualified in certain circumstances [See section 33(5) and (8)], or

(ii) he is anybody else, has the same consent and the child has had his home with him for 12 months, including the three months preceding the application, or

(iii) he is anybody with whom a child has had his home for three years including the three months preceding the application.

So, where a child has lived for three years away from a person who has legal custody of him, the person, if any, with whom he has lived for that period is entitled to ask the court to make him the custodian and live him legal custody, though such legal custody is not equivalent to the legal custody the first person had.

(iii) Provision is made for certain supplementary orders to accompany a "custodianship" order. Orders for access and maintenance may be made (section 34). Custodianship orders may be revoked and varied (section 35).

(iv) A court is empowered, in cases where the requirements for making an adoption order have been satisfied, to make a custodianship order instead, if it is of the opinion that such an order would be more appropriate. A custodianship order may also be made in favour of someone where a parent has applied for custody under the Guardianship of Minors Act, 1971, section 9 (see section 37).

(v) Section 38 provides a means whereby disputes between joint custodians about a child's upbringing can be resolved by the court making an order.

Provision is made for local authority investigation of application for custodianship orders, and for welfare reports to be obtained by the courts (sections 39-40).

(vi) Section 41 restricts, pending a court decision, the removal of a child from an applicant for custodianship who has looked after him for three years. Further provisions deal with enforcement and effect of custodianship orders (sections 42, 43 & 44). Custodians are empowered to apply for affiliation orders in certain circumstances (section 45).

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

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