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Report No. 83

Appendix 3

English Law and Its Evolution

I. Introductory

Introduction.- English law on the subject of guardianship of minors and custody of children is not to be found codified in one single enactment. So much of it as is statutory is scattered in several enactments. Part of it is still non-statutory. Broadly speaking, the sources of the English law on the subject are the following:-

(1) Legislation on the subject of guardianship and custody (including testamentary guardianship).

(2) Legislation relating to children.

(3) The law relating to inherent jurisdiction of the High Court in relation to wardship.

(4) The law relating to habeas corpus, in so far as it deals with the recovery of custody of minors below the age of discretion.

Evolution of law.- Legislation on the subject, particularly the statutes passed during the last half a century or so, shows that much of the field has come to be regulated by the State. The "rights" of the parents have receded into the background, while the welfare of the child has come into the foreground. This stage has not, however, been reached without considerable experimentation. Even now, the complexity of the legislation relating to children and the frequency with which it has been subjected to amendment, rather shows that the final solution to the problem of securing the welfare of children is not within easy reach.

A very brief history of the manner in which the law has evolved would not be out of place.

Evolution in recent times.- The law on the subject of guardianship of infants has undergone great changes in recent years.1 Originally based largely on the patriarchal and feudal theories of the family, it was readjusted to modern conditions on the abolition of feudal tenures in 1660,2 and again, with the increasing recognition of the equality of husbands and wives before the law, in 1886 and 1925. The key-note of the law is, however, not the traditional rights of the father, nor the abstract rights of the mother, but the welfare of the child: and this principle was expressly affirmed by the Act of 1925 as the 'first and paramount consideration'.

The principle has been reiterated3 in the Act of 1971, and again in the Act of 1973. In this process, the two great instruments of law reform-equity and legislation-have played a notable part. The role of judicial decision in common law courts has been limited because of the constraints that attach to improvement in the law by the judicial process.

1. Jenks The Book of English Law, (1953), pp. 229-230.

2. The Tenures Abolition Act, 1660.

3. The Tenures Abolition Act, 1660.

3. The Tenures Abolition Act, 1660.

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

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