The magistrates may, in default of such contribution, make an order against the parent. (n) Where the child is committed to the assizes or quarter sessions the judge or chairman has now a similar power to commit it to an Industrial School as that originally conferred upon the justices only. (0) Where a child is convicted of felony and sentenced to be bound over, or to be whipped, such conviction no longer carries with it the disqualifications attaching to felony, and does not therefore prevent a child being committed to an Industrial School. (p) Where it has been proved that a child under fourteen Living in a disorderly years of age is living in a house frequented by prostitutes, house. the magistrate is bound to make an order for its removal to an Industrial School, even though the child is living in the house with its mother, who is not a prostitute. (q) So, too, the mother may be convicted under the Criminal Law Amendment Act, 1885, of suffering her daughter to be on such premises, although she lives there herself, and has no other home. (r) The provisions of the Reformatory Schools Act, 1866, are considered in the chapter on the punishment of children.(s) A long succession of Poor Law Acts (t) has dealt inci- Poor Law Acts. dentally with the present subject, but the only one which it is here necessary to notice is that of 1899. (u) This Act provides that where a child is maintained by the guardians of a Poor Law union, and (1) the child has been deserted by its parent; or Prevention of Offence involv ing bodily injury. (3) a parent is under sentence of penal servitude or is being detained under the Inebriates Act, 1898; or (4) a parent of the child has been sentenced to imprisonment in respect of any offence against his or her children; or (5) a parent of the child is permanently bedridden or disabled, and is the inmate of a workhouse, and consents to the resolution; or (6) both the parents, or in the case of an illegitimate child the mother of the child, are or is dead; the guardians may, by resolution, constitute themselves. the guardians of the child, with all the rights and powers of the parents, to be exercised until (a) the child reaches the age of eighteen, or (b) the guardians themselves rescind the resolution, or (c) a Court of summary jurisdiction set the resolution aside. By section 6 of the Prevention of Cruelty to Children Act, 1904, (x) power is given to a Court of summary jurisdiction to transfer the custody of a child from its parent or former guardian to a relation or other person (y) who is, in the opinion of the Court, fitted to have such custody, in the three following cases : Where the person having the custody, charge, or care of the child has been : (a) Convicted of an offence under section 1, or any offence involving bodily injury to a child: or (b) Committed for trial for such offence: or (c) Bound over to keep the peace towards such child. An offence involving bodily injury (2) would include the offence of not providing servants and apprentices (a) 4 Edw. 7, c. 15; see post, P. 69. (y) By the 1904 Act " person" includes "any society or body corporate established for the recep tion of poor children or the prevention of cruelty to children." See post, p. 76. (z) Post, p. 54. with food, &c. (if under the age of sixteen), (a) of aggravated and common assault, (b) but not semble of unlawful carnal knowledge of a girl under thirteen. (c) In a case tried at the Bedford Summer Assizes, 1891, (d) Mr. Justice Vaughan Williams held that the magistrates did not, in the last-named instance, possess such a power, carnal knowledge not being necessarily a bodily injury. Amendment Section 12 of this Act (e) gives authority to the Court Criminal Law trying the case to transfer the custody from the parent A or guardian where the seduction or prostitution of the child has been caused, encouraged, or favoured by such parent or guardian.(ƒ) Offenders Act. Section 4 of this Act (g) empowers magistrates in cases Youthful where a child has been charged with a criminal offence, instead of committing such child to prison, to commit him into the custody of any fit person who is willing to receive him. Now, by the Custody of Children Act, 1891, (h) where Custody of an application is made by a parent in the High Court, Children Act. for a writ or order for the production of a child, and the Court is of opinion that the parent has abandoned or deserted the child, the Court may decline to issue the writ or make the order.(i) If the child is being brought up by another person, the Court may order that the parent shall pay all or part of the costs properly incurred in such bringing up.(j) Where a child has been abandoned or deserted by its parent and has been brought up by another person for a sufficient length of time to show the parent's unmindfulness of his duties, the Court shall not restore the child to the parent, unless it is satisfied that he is a fit and proper person to have the custody of it, (k) but the person with whom the child has Modes of obtaining custody. been boarded by its parent is not entitled to retain the custody in security for arrears.(1) In cases where the child is being brought up in a religion different from that in which the parent has a legal right to claim that it should be brought up, and the parent is not considered a fit and proper person to be himself allowed the custody, the Court may make such order as it thinks fit to secure that the child shall be brought up in the religion of its parent. (m) PROCEDURE. Apart from the statutory provisions already mentioned, there are now two methods of dealing with or obtaining the custody of a child: by application on summons to a judge of the Chancery Division, or by suing out a writ of habeas corpus. Where the question raised is merely as to the maintenance or guardianship of the child, the former course is the right one, but where it is desired to recover the possession of a child from a person alleged to be wrongfully retaining such possession, a writ of habeas corpus should be sued out. The Court of Chancery, acting as parens patriæ, has, as already stated, jurisdiction over all infants, whether possessed of property or not. In the majority of cases, however, "the Court has not the means of acting except where it has property to act upon," (n) and it has therefore been the custom in applications for guardianship to place a sum of money to the child's credit. This is no longer necessary, as it has now been held that the jurisdiction of the Court extends to infants who are not wards, and who have no property. (0) It is to be observed, however, that it is still, in many cases, desirable that a sum of money should be placed to the child's credit, if application is to be made to the Chancery Division; for a stronger case must be made (1) Kerrigan v. Hall, ante, p. 8. (n) Per Lord Eldon, Wellesley v Beaufort, 2 Russ. 21. (0) Re McGrath [1893] 1 Ch. 143. out when the Court is asked to act on behalf of a child who has no property, which can be the subject of a scheme to be sanctioned by the Court, than when a scheme can be sanctioned under which the child can be brought up under the direct supervision of the Court. In the latter case it would be much more willing to interfere. Where the would-be guardian is a person having a legal claim to the custody, and desires to recover the possession of the child from a person alleged to be wrongfully detaining it, the proper proceeding is to sue out a writ of habeas corpus, and in this case it has never been necessary that the child should be possessed of property. IN CHANCERY. By Order 55, r. 2 (12), of the Rules of the Supreme ApplicationsCourt, 1883, "Applications as to the guardianship and how made. maintenance or advancement of infants" are "to be disposed of in Chambers by judges of the Chancery Division." Under ordinary circumstances the application should be made on summons, and only in cases of real difficulty, as where an action is pending, should a petition be presented.(p) The summons should be supported at the hearing by affidavits setting forth the age of the child, the amount of its fortune, what relations it has, under what circumstances it is living, the fitness of the applicant to have the custody, and the scheme of education that is proposed. HABEAS CORPUS. to the writ. A writ of habeas corpus will issue at the instance of Who is entitled any person who has the legal right to the custody of a child, but it will not be given to a stranger, (q) nor to a master to bring up an infant servant. (r) It may be (p) Lyons v. Blenkin, Jac. 254. 1801. (r) R. v. Reynolds, 6 T. R 197. |