THE LAW RELATING TO CHILDREN. INTRODUCTION. THERE is no fact more striking in the history of the progress of all systems of jurisprudence than this, that laws were, in the earlier stages of the civilisation of every nation, enacted, not so much for the protection of the weak as for safeguarding the rights of the strong. In no branch of the law is this fact more manifest than in that which relates to the most helpless subjects of the Crown, viz., its children. While the development of the legal status of the peasant, from that of a mere chattel appurtenant to the manor upon which he was born, to the full rights of citizenship, was long since insured, the legal status of the child has remained until very recent times almost unchanged. Although the law decreed that a child on reaching the age of seven years was subject to the same penalties as an adult citizen, it denied to the same child almost all a citizen's rights. The private parental authority to which the child was subjected was one which, though established and surrounded by almost unlimited legal sanction, was practically devoid of all legal responsibility. Although the English law never conferred upon a father the power given by the Roman law of life and death over his child, his dominion, short alone of this, was almost wholly uncontrolled. While no remedy existed for the wrongs, however great, of the child, should that child transgress the law but once, he found that, though it gave him in most instances no C. B protection, it likewise showed him no mercy; the boy of eight years only, was doomed equally with, and for the same offences as, the adult man of forty, to the extreme penalty of death. Only by slow and painful degrees has it become recognised that the criminality of the child is a thing different, alike in kind and degree, from the criminality of the adult, and needing therefore different treatment; hence the Industrial School Acts and the Youthful Offenders Act. Similarly it has become recognised that the child is something more than a mere chattel whose body may be sold to work for unlimited hours in helpless slavery; hence the Factory Acts and the Mines Regulation Acts. Finally, it has become recognised that the child has a right to food, to cleanliness, to a life free from the fear of wanton ill-usage and to some degree of parental care and consideration; hence the Prevention of Cruelty to Children Acts. To trace this slow process of legislative development would of course involve an inquiry wholly outside the scope of this work, but this brief glance at the change itself, has seemed necessary in order that the numerous enactments which have been brought about by it may be rightly appreciated. PART I. CHAPTER I. CUSTODY OF CHILDREN. I. LEGITIMATE CHILDREN. Common Law right of father. By the old Common Law of England the right of a father to the custody of his legitimate child was practically an absolute one, and he was entitled to the possession of it, however young, even against the will of the mother. (a) In the case of Rex v. De Mandeville (b) the doctrine was carried to the length of holding, that the father's right was inherent, even though the infant was at the mother's breast; and in Rex v. Greenhill (c) the Court compelled the mother to give up the custody although the father was holding adulterous intercourse with another woman. This right to the custody carried with it the right to determine all matters relating to the child's education, religious training, &c. (d) The strictness of the Com- Equitable mon Law rule, however, did not find favour with the right. Court of Chancery, which, representing the King as parens patriæ, gradually took upon itself authority to interfere for the protection of a child, where it could be shown that serious and direct injury might result to the child through its being under the father's control, and even the Common Law Courts in time began more and more to recognise certain qualifications of the father's right, as e.g., if he were grossly immoral, or if he wished to obtain the (a) Ex parte Skinner, 9 Moore, 278. (b) 5 East, 221. (c) 4 A. & E. 624. (d) Agar-Ellis v. Lascelles, 10 C. D. 49. Legislative changes. As to the child's religion. child for an unlawful purpose. (e) Finally the Legislature also slowly awoke to the consciousness, that, in the interests of the child, some modification was necessary of the ancient rights of the father, although the earlier statutes dealing with the subject would appear to have been passed rather in the interests of the parent than of the children. The Guardianship of Infants Act, 1660, (ƒ) empowered the father to dispose of the custody of his infant child during minority; this Act does not apply to illegitimate children. (g) The Custody of Infants Amendment Act, 1873, (h) gave power to the Court of Chancery, in its discretion, to grant the custody and control of children under sixteen to the mother. It was held in the case of Elderton (i) that a breach of marital duty was good ground for the exercise of such discretion, and in another case (k), that it was the duty of the Court to consider all the circumstances in their bearing upon the welfare of the child. It was in one case (1) held that the words in the second section,"custody and control," gave the mother, inter alia, the right of directing the child's religious education, but a more recent decision has established the father's right to decide in all cases on what the child's religion is to be. (m) Where, however, the father, a Roman Catholic, had paid during his lifetime little attention to his religion, allowing his children to attend a Protestant school, and after his death his wife became a Protestant, and on her death, four years later, appointed a Protestant guardian to the children, the Court refused to remove the guardian, though, as North, J., added, had the application been on the death of the father, his decision would have been (e) Per Lord Campbell, R. v. (g) Ex parte Glover, 4 Dowl. 291. (h) Post, p. 155. (i) 25 Ch. D. 220. (k) Ethel Browne, in re, 13 Q. B. D. 614. (1) Condon v. Vollum, 57 L. T. 154. (m) Scanlan, In re, 40 Ch. D. 200. |