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Report No. 83

1.20. Position elsewhere and on the continent.-

Recent legislation in England also emphasis in positive terms the equal positions of each parent.1 In France,2 the former "paternal power" (puissance paternelle) has been replaced by the new "parental authority" (authorite parentale).

The modern approach is also illustrated by the position as it prevails in Sweden.3 The parents are joint guardians of the children of the marriage, and, on the death of the one parent the other becomes the sole guardian. During separation or after divorce, the parent with custody is the sole guardian. Of illegitimate children, the mother is the sole guardian unless she is unsuited to act on behalf of the child.

Until the twentieth birthday, a child remains in the custody of the parent or the guardian. During the cohabitation of the parents, parental custody is joint. In the event of separation or divorce, the Court determines which parent shall be the custodian. In practice, the mother is often preferred when the child is of tender age, while there is a preference of the father in the case of teenage sons.

1. Guardianship of Minors Act, 1971 and Guardianship Act, 1973.

2. Law of 4th June, 1970 (France) as briefly summarised in Alexandre Women in France, (1972) 20 American Journal of Comparative Law 647, 651.

3. Wallin Women in Sweden, (1972) 20 American Journal of Comparative Law 622, 626.

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

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