Report No. 83
XI. Habeas Corpus
Habeas Corpus.- In England, Habeas Corpus has also long been used to gain the custody of infants. The writ is issued on the application of the party seeking custody and is directed against whoever has the control of the infant.1 Though, in theory, it still costs on the idea of relieving an illegal restraint, the ordinary rules of family law apply in custody cases and the matter is heard in the Family Division (previously, the Chancery Division).
An application for custody is a proceeding which involves "not a question of liberty, but nurture, control and education".2 As Scrutton L.J. said in his picturesque language,3 proceedings (by way of habeas corpus) for custody are being used "not for the body, but for the soul of the infant".
Nature of the writ and its unenforceability.- The essence of the writ habeas corpus has always been to free the infant from any unlawful restraint or ill-usage and the court has never been bound to deliver him to anyone. If, therefore, the infant had reached years of discretion and escaped beyond the control of the father, he would not be delivered to the father without examination, but would be allowed to elect where he should go.4
In other words, the right of the father to custody in such cases became unenforceable by the father-at any rate by habeas corpus proceedings in a court of law-once the infant had reached years of discretion, though the right continued to exist in theory until the infant attained the age of twenty-one.5
However, so long as the infant remained in the actual custody of the father, the father6 had a legal right to the control of his infant children, and if the infant were of the years of discretion, the court would interfere only on the same grounds as it would have interfered if the infant were under that age (though it was recognised that a young child requires very different treatment from an older one, and conduct of a father which might be tolerated in the case of one might be perfectly intolerable in the case of the other).
Age of discretion.- The age of discretion was apparently fourteen years in the case of a male,7 but, by argument from the provisions of one statute8 it was sixteen in the case of a female infant.
So far as concerned in illegitimate child, it seems that the infant could elect, or at least its wishes would be taken into consideration as soon as it had passed the age of nurture,9 though the position was, of course, basically different in that no one appeared to have had any right to the custody of an illegitimate child after it had attained the age of nurture.
1. Sharpe Law of Habeas Corpus, (1976), pp. 168, 169.
2. Barnsrdo v. McHuge, (1891) 1 OB 194 (203) (Lord Ezher M.R.).
3. Carrol (in re:), (1931) 1 KB 317 (331).
4. R. v. Greenhill, (1836) 4 A&E 624.
5. See Hargreaves's note to Coke upon Littleton, 88b and Agar-Ellis (in re:), (1883) 24 Ch D 317.
6. Agar-Ellis (in re:), (1883) 24 Ch D 317.
7. R. v. Clarke, (1857) 7 FT&Bl 186; Thomasset v. Thnwsset, (1894), p. 195.
8. The statute (1557) (4 & 5 Phillip & Mary, C. 81) relates to abduction.
9. Eloyd (in re:), (1841) 3 Man & Gr 847; R. v. Clarks, (1857) 7 Fl&131 186; While (in re:), (1848) 10 LT 349.