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The waning of parental rights

Published online by Cambridge University Press:  16 January 2009

J. C. Hall
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Extract

Fifty years ago the rights of a parent were held in high regard by English law. Since then there has taken place a fairly steady erosion of those rights, so that the picture presented today differs quite markedly from that of the early 1920s.

Type
Research Article
Information
The Cambridge Law Journal , Volume 31 , Issue 1: Jubilee Issue , April 1972 , pp. 248 - 265
Copyright
Copyright © Cambridge Law Journal and Contributors 1972

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References

1 See generally Bromley, P. M., Family Law (4th ed., 1971), pp. 246–339Google Scholar; James, T. E., Child Law (1962)Google Scholar; Pettit, P. H., “Parental Control and Guardianship” (A Century of Family Law (1957), Chap. 4)Google Scholar; Parental Custody and Matrimonial Maintenance, Pt. I (B.I.I.C.L., 1966)Google Scholar; Craffe, M., La Puissance Paternelle en Droit Anglais (1971).Google Scholar

2 There is a helpful exposition of the two meanings of the term by Sachs, L.J. in Hewer v. Bryant [1970] 1 Q.B. 357, 372, 373.Google Scholar

3 The “bundle” also includes the power to veto the issue of a passport, withhold consent to marriage, and administer the minor's property. Thus in this sense custody is almost equivalent to guardianship. On the other hand the term “custody” is sometimes (e.g., in the Limitation Act 1939, as amended) used in the narrow sense of care and control. For a discussion of the confusion, see post, p. 261. For the meaning of “age of discretion,” see post, p. 265.

4 R. v. De Manneville (1804) 5 East. 221; R. v. Greenhill (1836) 4 Ad. & E. 624.

5 Guardianship of Infants Act 1886, s. 5.

6 See post, p. 255, n. 51, for the origin of this term.

7 S. 1 of this Act (now the Guardianship of Minors Act 1971, s. 1) made the welfare of the child “the first and paramount consideration” in any dispute concerning its custody or upbringing. See post, p. 251.

8 See Bromley, op. cit., pp. 264, 270; James, op. cit., p. 16; Pettit, op. cit., p. 63; Parental Custody and Matrimonial Maintenance (B.I.I.C.L., 1966), p. 18Google Scholar (Dr. O. M. Stone). For the judicial authority, see post, n. 32.

9 Re Plomley (1882) 47 L.T. 283, 284.

10 Re Agar-Ellis (1883) 24 Ch.D. 317, 329. Lord Upjohn described this case as “dreadful” in J. v. C. [1970] A.C. 668Google Scholar, 721D.

11 Ibid. p. 334. See also the judgment of Bowen L.J., who expressed agreement with the observation of Kindersley V.-C. that if the benefits of the child were to be considered, he suspected “that the peace of half the families in the country would be disturbed …”: Re Curtis (1859) 28 L.J.Ch. 458, 459.

12 [1893] 2 Q.B. 232.

13 Re McGrath [1893] 1 Ch. 143; Re A. and B. (Infants) [1897] 1 Ch. 786. See also Re Harriet O'Hara [1900] 2 I.R. 232Google Scholar, 239–241, per Fitzgibbon L.J.

14 (1904) 20 T.L.R. 583.

15 Supra, nn. 12, 13.

16 At p. 584. This case was also castigated as “dreadful” by Upjohn, Lord in J. v. C. [1970] A.C. 668, 723A.Google Scholar

17 [1910] P. 190, 194.

18 In this case the father had been awarded custody of the daughter at the time of the divorce proceedings owing to a finding of adultery against the mother, but the Court of Appeal now discharged the order as the girl had reached 16 and was therefore free to live where she pleased.

19 (1918) 87 L.J.Ch. 445.

20 At p. 447. It was plain here that the removal of the child would be detrimental to its best interests and the father's claim accordingly failed. As the conflict here was between the parents of a legitimate child and a third person the decision is a strong one.

21 [1925] A.C. 101.

22 At p. 108. The other members of the House agreed.

23 However, Lord Upjohn considered that the statement of principle by Viscount Cave L.C. in Ward v. Laverty, cited above, was not intended to be confined to orphans: J. v. C. [1970] A.C. 668Google Scholar, 723F. But cf. Re Carroll, post, p. 253.

24 Thus Chap. VII, entitled “Control and Custody,” opens with these words: “The Court of Chancery has in numerous cases emphatically recognised the father's right as guardian by nature and nurture to the custody of his child” (p. 91).

25 s. 1 is referred to in more detail post, p. 252.

26 The Bill was intended primarily, it appears, to advance women's rights. Apparently some women's organisations considered it should have gone further.

27 Hansard (House of Commons), Vol. 181 (1924–25), p. 532.Google Scholar

28 Mr. Gerald Hurst, who had served on the Joint Committee of Lords and Commons which had considered the whole problem in 1923.

29 At p. 538. But this seems to overlook Ward v. Laverty, supra. It is also strange that Mr. Hurst did not consider that the Bill would solve the problem caused by a change of religion on the part of the father after the marriage.

30 At p. 547.

31 Ibid. (House of Lords) Vol. 61 (1925), p. 522. It was of course Viscount Cave L.C. who delivered the leading opinion in Ward v. Laverty, supra.

32 J. v. C. [1970] A.C. 668, 727DGoogle Scholar. On the other hand Upjohn, Lord maintained that the Act “enshrined the view of the Chancery Courts,”Google Scholar and Lord Guest apparently agreed with him: pp. 724E, 697F, respectively. See also Re Thain [1926] Ch. 676, 689, 691Google Scholar; McKee v. McKee [1951] A.C. 352, 366Google Scholar; and Re Adoption Application No. 41/61 [1963] Ch. 315, 328Google Scholar for expressions of this (the more orthodox) view.

33 The remainder of s. 1 (now s. 1 of the Guardianship of Minors Act 1971) enjoins the court not to take into consideration whether from any other point of view the claim of the father or any common law right of the father in respect of custody, etc., is superior to that of the mother, or vice versa.

34 J. v. C. [1970] A.C. 668.Google Scholar

35 [1926] Ch. 676.

36 But Eve J.'s approach to the effect on the child of being transferred from one home to another was based on what would now be regarded as obsolete child psychology.

37 The headnote in the Law Reports is misleading: J. v. C. [1970] A.C. 668Google Scholar, 711D, per Lord MacDermott.

38 Re Adoption Application No. 41/61 [1963] Ch. 315.Google Scholar

39 [1931] 1 K.B. 317.

40 Greer L.J. dissented.

41 At pp. 335, 336.

42 At p. 354.

43 At p. 355. The Act was accorded only a brief, passing mention by Scrutton L.J. at p. 337.

44 [1970] A.C. 668.

45 See ante, p. 250.

46 Not surprisingly he had by then become fully integrated into the family of the foster-parents (a solicitor and his wife) and, mirabile dictu, had become keen on cricket: see Ungoed-Thomas J. at first instance [1969] 1 All E.R. 789, 796.

47 Now s. 1 of the Guardianship of Minors Act 1971.

48 The narrow view of the Act's operation was derived from its preamble; but this cannot restrain its effect: Att.-Gen. v. H.R.H. Prince Ernest Augustus of Hanover [1957] A.C. 436, 463.Google Scholar

49 At pp. 726H, 727E.

50 At p. 715B. Lord Pearson agreed with Lord MacDermott's opinion.

51 The first use of this “rather curious word ‘paramount’” was traced back by Lord Upjohn to Re A. & B. (Infants) [1897] 1 Ch. 786; see p. 722C.

52 At pp. 710H–711A. See also Re F. [1969] 2 Ch. 238Google Scholar, 241C, where Megarry J. explained that what was meant was that the child's welfare was to be “the preeminent or superior consideration.”

53 Matrimonial Proceedings and Property Act 1970, ss. 18, 19; Matrimonial Proceedings (Magistrates' Courts) Act 1960, s. 2 (1) (d).

54 s. 9.

55 Following the scandal caused by Re Dunhill (1967) 111 S.J. 113Google Scholar, when a night club owner made a well-known society girl a ward of court for publicity purposes, a person applying for an originating summons must now state his relationship to the ward: Practice Direction [1967] 1 W.L.R. 623.Google Scholar

56 Post, p. 257.

57 Hewer v. Bryant [1970] 1 Q.B. 357, 369G.Google Scholar

58 16 for a girl and probably 14 for a boy. See post, p. 265.

59 See (1967) 83 L.Q.R. 201 (Sir Geoffrey Cross).

60 Legitimacy Act 1959, s. 3; now Guardianship of Minors Act 1971, s. 14. Before 1959 the natural father had to institute wardship proceedings.

61 Re Adoption Application No. 41/61 [1963] Ch. 315Google Scholar; Re O. [1965] Ch. 23.Google Scholar

62 As witness the controversial case of Re C. (M.A.) [1966] 1 W.L.R. 646Google Scholar, where Russell, L.J. stated that he attached great weight to “the blood tie” (pp. 678H–679A)Google Scholar and accordingly the Court of Appeal by a majority (Willmer L.J. strongly dissenting) upheld a decision giving custody to the 47-year-old father of an illegitimate child.

63 Guardianship of Minors Act 1971, ss. 3, 4, 14. It should also be remembered that, irrespective of a custody order, the father (and the mother) of an illegitimate child have rights of succession on his death intestate: Family Law Reform Act 1969, s. 14.

64 See for example Fatherless by Law? (Church Information Office, 1966)Google Scholar; (1968) 17 I.C.L.Q. 634 (Prof. D. Lasok); and the address by Sir Leslie Scarman, Chairman of the Law Commission, to the National Council for the Unmarried Mother and her Child, The Times, 21 November 1968.Google Scholar

65 [1970] A.C. 668, 722H–723A.

66 s. 12. A number of other offences were also created: exposing the child to burning, and causing or encouraging the seduction or prostitution of a female child under 16 (ss. 15, 17).

67 s. 21. A relic of our imperial past is to be seen in s. 21 (6), which authorised the Secretary of State to empower the person given care “to procure the emigration of the child.”

68 Children and Young Persons Act 1969, s. 1 (3) (c).

69 Ibid. s. 20 (1).

70 Ibid. s. 1 (2). Less drastic orders than a care order are available to the court, such as a supervision order or a hospital order, etc.: s. 1 (3).

71 The subsection includes other grounds, e.g., that he is guilty of an offence, or that he is of compulsory school age but is not receiving efficient full-time education suitable to his age, ability and aptitude.

72 One interesting and important development which took place in 1963 was that local authorities were authorised to diminish the need to receive children into care by providing assistance in kind or even in cash: Act of 1963, s. 1. See “Children without a Satisfactory Home” (1970) 33 M.L.R. 649, 652 (Dr. O. M. Stone).Google Scholar

73 s. 2.

74 Receiving into care is governed by s. 1.

75 Namely, that a parent or guardian has abandoned him or suffers from some permanent disability rendering him incapable of caring for the child, or is of such habits or mode of life as to be unfit to have the care of the child: s. 2 (1) (b).

76 s. 2 (2) (3). See “The Control of Local Authority Powers over Children” (Levin, J.), (1971) 1 Fam.Law 101.Google Scholar

77 Matrimonial Proceedings (Magistrates' Courts) Act I960, s. 2 (1) (e); Matrimonial Causes Act 1965, s. 36; Family Law Reform Act 1969, s. 7. It appears, as would be expected, that sparing use has been made of these powers.

78 See R. v. Edward Smith (1853) 22 L.J.Q.B. 116; R. v. Barnardo (1889) 23 Q.B.D. 305; Re Harriet O'Hara [1900] 2 I.R. 232, 241.Google Scholar

79 Adoption of Children Act 1926.

80 Adoption of Children Act 1949. See now the Adoption Act 1958, ss. 13–19.

81 Re M. [1955] 2 Q.B. 479.Google Scholar

82 Adoption Act 1958, s. 4.

83 s. 2 (3).

84 Children Act 1958, s. 18, now the Adoption Act 1958, s. 5 (2); Re P. [1962] 1 W.L.R. 1296.Google Scholar

85 Adoption of Children Act 1949, s. 3 (1) (c), now the Adoption Act 1958, s. 5 (1)(b).

86 Hitchcock v. W.B. [1952] 2 Q.B. 561Google Scholar; Re K. [1953] 1 Q.B. 117.Google Scholar

87 Compare Re W. [1970] 2 Q.B. 589Google Scholar and Re B. (C. H. O.) [1971] 1 Q.B. 437Google Scholar where different divisions of the Court of Appeal took quite different views.

88 [1971] A.C. 682.

89 At p. 699C. This decision was followed in O'Connor v. A. & B. [1971]Google Scholar 1 W.L.R. 1223, where the House of Lords upheld a decision to dispense with the consents of both parents, although they were now married and able to provide an adequate home for the child.

90 Adoption Act 1958, s. 3.

91 Chairman, Sir William Houghton.

92 Working Paper on the Adoption of Children, 1970, § 11.

93 See “The Age of Majority” (Prof. James, T. E.) (1960) 4 American Journal of Legal History 22.CrossRefGoogle Scholar

94 Report of the Committee on the Age of Majority, 1967, Cmnd. 3342.

95 s. 1.

96 But not all the parental obligations: Family Law Reform Act 1969, s. 5; Guardianship of Minors Act 1971, s. 12; Matrimonial Proceedings and Property Act 1970, s. 8.

97 It was rare for a court to make such an order in the case of a child of 18 or over.

98 Family Law Reform Act 1969, s. 2.

99 See the powerful dissenting opinion of two members of the Latey Committee at §§ 561–580. See also (1968) 31 M.L.R. 429, 432–434 (B. Downey).

1 Dean v. Peel (1804) 5 East. 45; Terry v. Hutchinson (1868) L.R. 3 Q.B. 599.

2 See Clerk & Lindsell, Torts, 13th ed. (1969), §§ 829–840. Professor Sir Percy Winfield traced the extension of this action from masters to parents back as far as 1653: Tort, 3rd ed. (1946), p. 229.Google Scholar

3 Quoted in the Law Commission's Working Paper No. 19, 1968, p. 56.

4 Ibid., §§ 88, 90; Law Com. No. 25, 1969, §§ 101, 102.

5 As Dr. O. M. Stone has pointed out, the tendency of English law in this field has been “to think not in terms of general rights, but of particular remedies available in particular courts, and sometimes under particular statutes”: Parental Custody and Matrimonial Maintenance (B.I.I.C.L., 1966), 10, 31.Google Scholar

6 Though consolidation is needed of the Adoption Acts 1958–68, and even more so of the Children and Young Persons Acts 1933–69.

7 It is also needed for parental obligations, though this falls outside the scope of the present article.

8 A right of access might be described as a fourth tier.

9 A custody order is of course frequently made in favour of a person who is not the guardian. Cf. Re T. (orse. H.) [1963] Ch. 238.Google Scholar

10 A so-called split order, whereby formal custody is given to one person but care and control to another, is often made by the divorce court and can also be made by magistrates under the Guardianship of Minors Act 1971, though not under the Matrimonial Proceedings (Magistrates' Courts) Act 1960: Re W. [1964] Ch. 202Google Scholar; Wild v. Wild [1969] P. 33.Google Scholar

11 Yet further confusion can be caused by the fact that guardianship may be limited to the person or to the assets of the child (or it may extend to both): see n. 14, infra.

12 But not quite: Re T. (orse. H.) [1963] Ch. 238Google Scholar, post, n. 17.

13 It is used in this narrow sense in the Limitation Act 1939, as amended: Hewer v. Bryant, supra; Todd v. Davison [1971] 2 W.L.R. 898.Google Scholar

14 Ex p. Hopkins (1732) 3 P.Wms. 152, per Lord King L.C.; Re Agar-Ellis (1883) 24 Ch.D. 317, 335; Re T. (orse. H.), supra; Hewer v. Bryant, supra, at p. 372. The older law is complicated by the distinction between guardianship of the person and guardianship of the estate. Originally guardianship by nature only arose where land was left to an infant: 1 Black.Comm. (1765) 461. See also Eversley, Domestic Relations, 6th ed. (1951), pp. 331–332.Google Scholar However, in 1880 Jessel, M.R. said, “I suppose ‘guardian’ of an infant means guardian of the person”Google Scholar: Rimington v. Hartley (1880) 14 Ch.D. 630, 632. See generally Stone, Dr. O. M. in Parental Custody and Matrimonial Maintenance, (B.I.I.C.L., 1966) 10, at p. 29.Google Scholar

15 This is the result in practice of s. 1 of the Guardianship of Minors Act 1971. The joint right is of course subject to any contrary court order.

16 Ibid., s. 3. The provision in subs. (2) for the father to be sole guardian of the child if the mother dies first and does not appoint a testamentary guardian seems otiose.

17 Re T. (orse. H.) [1963] Ch. 238Google Scholar. Moreover his rights of succession on the child's death intestate remain.

18 As late as 1841 Maule, J. could still ask, “How does the mother of an illegitimate child differ from a stranger?”Google ScholarRe Ann Lloyd (1841) 3 Man. & G. 547; and Lord Herschel did not consider Maule J. was speaking ironically: Barnardo v. McHugh [1891] A.C. 388, 398. The House of Lords there established that “the desire of the mother of an illegitimate child as to its custody is primarily to be considered” (p. 399). However, the House appear to have thought that the mother's rights were still less strong than those of the father of a legitimate child: see p. 396. See also R. v. New and Re Carroll, discussed ante, pp. 250, 253.

19 S. 14 (3) expressly provides that if the father of an illegitimate child is awarded custody by the court he shall be treated as if he were the lawful father of the child for the purposes of ss. 3, 4, 5, and 10 of the Act. The absence of any express mention of the mother of an illegitimate child suggests that at least she has the rights of the mother of a legitimate child and probably those of the father as well. (This Act was only a consolidating Act.)

20 The signature is often requested of “the parent or guardian.” But cf., the Preliminary Form of Application for Admission to the Colleges of the University of Cambridge, which (correctly) asks for the “name … of guardian, if not father.”

21 Guardianship of Minors Act 1970, s. 4.

22 Ibid., s. 5.

23 There was formerly another kind of guardian, namely a guardian appointed by the infant himself: see Re Brown (1881) 18 Ch.D. 61, 65, 67, 72. This is now almost certainly obsolete, but the point could usefully be confirmed by statute.

24 The Prime Minister promised such legislation in a speech on 19 May 1971: see The Times, 20 May 1971.Google Scholar

25 It would still be open to the father to apply for custody or access under the Guardianship of Minors Act 1971, ss. 9, 14; and of course his liability to maintain the child would remain (Affiliation Proceedings Act 1957). For a discussion of the question of recognition of the illegitimate child by the father, see (1968) 17 I.C.L.Q. (Prof. D. Lasok). See also Fatherless by Law? (Church Information Office, 1966).Google Scholar

26 Particularly obscure is the position of the custodian with regard to the child's property. Custody in the wide sense is said to include “the administration of the infant's property” ( Hewer v. Bryant [1970] 1 Q.B. 357Google Scholar, 373B); yet not even the father as natural guardian of the child can give a valid receipt for a legacy given to the child: Dagley v. Tolferry (1715) 1 P.Wms. 285; Snell, Principles of Equity, 26th ed. (1966), pp. 386Google Scholar, 586.

27 At present the natural guardian of the child could claim it unless a declaration of unfitness had been made by the court under s. 18 (3) of the Matrimonial Proceedings and Property Act 1970 (which is very rare in practice) or unless the child is made a ward of court. See (1966) 9 J.S.P.T.L. 201, 235.

28 This is really part of the wider problem of the need for some on-going control of the situation in order to render more effective the principle contained in what is now s. 17 of the Matrimonial Proceedings and Property Act 1970. See Law Commission Working Paper No. 15 (written by the Cambridge University Faculty of Law).

29 The authority often cited for this is a dictum of Lord Hardwicke L.C. in Mendes v. Mendes (1748) 1 Ves.Sen. 89, 91, though this dictum does not appear in the report at 3 Atk. 619; moreover it appears to be concerned with testamentary guardianship.

30 See R. v. Inhabitants of Wilmington (1822) 5 B. & Ald. 525, 526, where Abbott C.J. observed that “during the minority of a child there can be no emancipation unless he marries …” But this case was concerned with the power of magistrates to order the removal of a pauper from their parish. In Lough v. Ward [1945] 2 All E.R. 338, 348Google Scholar, Cassels, J. stated roundly that “the father … has control over his children … until they are 21 years of age or marry under that age.”Google Scholar

31 Eyre v. Countess of Shaftesbury (1724) 2 P.Wms. 103. The position if a female ward of a testamentary guardian marries is uncertain, but cf. n. 29 supra, and see Johnson, Family Law, 2nd ed. (1965), p. 303.

32 Roach v. Garvan (1748) 1 Ves.Sen. 157. See Eversley, op. cit., pp. 466–467.

33 As is the case apparently if a minor enlists in the Armed Services: R. v. Inhabitants of Rotherfield Greys (1823) 1 B. & C. 345.

34 R. v. Howes (1860) 3 El. & El. 332.

35 Re Agar-Ellis (1883) 24 Ch.D. 317, 326 per Brett M.R.; Re Thomasset [1894] P. 395, 398 per Lindley L.J.

36 For a valuable account of the actual practice in wardship proceedings see (1967) 83 L.Q.R. 201 (Sir Geoffrey Cross).

37 It seems for example that at present a mother, unlike a father, is not always under a legal duty to provide her child with a home: see Morris v. Tarrant [1971] 2 Q.B. 143, 155BGoogle Scholar, per Lane J.

38 This suggestion was made by the Advisory Centre for Education: The Times, 8 April 1971Google Scholar. See also the suggestion that “a children's Ombüdsman” be appointed: Children Have Rights, No. 5, published by the Children's Committee of the National Council for Civil Liberties, September 1971.Google Scholar