Report No. 83
6.41. English law.-
In this context, we may refer to the English law on the subject of guardianship and custody of "minors"-an expression now used in place of the earlier expression "infants".1 The principal legislative measure on the subject is the Guardianship of Minors Act, 1971 supplemented by the Guardianship Act, 1973. Besides these Acts, elaborate legislation relating to children has been passed in recent times, particularly the Children's Act, 1975. The principle on which questions relating to custody, upbringing etc. of minors are to be decided, is thus laid down in the English Act of 1971,2 applicable to judicial proceedings:-
"1. Where in any proceedings before any court3 (whether or not a Court as defined in section 15 of this Act)-
(a) the custody or upbringing of a minor; or
(b) the administration of any property belonging to or held on trust for a minor, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether, from any other point of view, the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."
The Act of 19734 provides for the equality of parental rights in these terms:-
"1. (1) 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 same rights and authority as the law allows a to father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other."
Then there is the inherent jurisdiction of the High Court in regard towardship. Finally, the law relating to Habeas Corpus, in so far as it deals with the recovery of minors below the age of discretion, is also relevant5.
Side by side with these legislative 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 on the subject-Children Act, 1975-this branch of the law has become a fairly complex one in England.
The object of legislation relating to children is to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected and delinquent children and for the trial of the latter. Accordingly, the Children Acts initially made elaborate provisions for the establishment of a specialised machinery for dealing with such children.
However, the range and coverage of the legislation has now expanded. The Children Act, 1975 introduces certain provisions. One new concept concerns "custodianship". 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.
A "custodianship" order under the Act vests "legal custody" of the child in the applicant, who becomes known as the child's "custodian". A custodian appears to be in a similar position to a parent having custody of his child, but is not called his "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.
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.6 Though, in theory, it still rests 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 of nurture, control and education".7
1. For detailed discussion of the English law and its evolution, see Appendix 3.
2. Section 1, Guardianship of Minors Act, 1971.
3. Emphasis added.
4. Section 1(1), Guardianship Act, 1973.
5. See infra.
6. Sharpe Law of Habeas Corpus, (1976), pp. 168, 169.
7. Barnardo v. Mc Huge, (1891) 1 QB 194 (203) (Lord Esher M.R.).