Other cases. other guardian, and can only be exercised by a father or mother; it terminates at the age of fourteen, (b) and is confined to the personal custody of a child.(c) When an illegitimate male child reaches that age he will be entitled to the choice of his place of residence, (d) but a girl cannot so choose until she reaches sixteen.(e) The fact that an affiliation order has been granted against the putative father does not in any way entitle him to the custody as against the mother, (f) but after the mother's death the putative father is entitled to the custody of his illegitimate children even as against a person claiming to have been appointed by the mother. (g) The mother's right has always been recognised by the Court of Chancery, and as the rules of equity now prevail, the dictum of Lord Mansfield in R. v. Felton, is no longer applicable. In the case of R. v. Nash, (h) the Court of Appeal held that the mother of an illegitimate child had a natural right to its custody, which, if consistent with the child's welfare, must be enforced. The authorities do not, however, establish the proposition that the mother of an illegitimate child has the same legal rights over it as the father of a legitimate one. (i) Referring to the case. of R. v. Nash, Lord Herschell remarked, (k) "I think this case determines (and I concur in the decision), that the desire of the mother of an illegitimate child as to its custody is primarily to be considered. Of course, if it can be shown that it would be detrimental to the interests of the child that it should be delivered to the custody of the mother. . . the Court, exercising its jurisdiction, as it always does in such a case, with a view to the benefit. of the child, would not feel bound to accede to the wishes (b) R. v. Clarke, 7 E. & B. 186. (c) Bac. Abr., vol. iii., p. 404. (f) 7 & 8 Vict. e. 101. (g) Kerr, in re, 24 L. R. (Ir.) 59. (h) 10 Q. B. D. 454. (i) Barnardo v. McHugh, [1891] A. C. 388. (k) Id. at p. 399. of the mother." After the mother's death the putative father is entitled to the custody of an illegitimate child, in preference to a guardian appointed by the mother, and he may by any peaceable means take possession of it (). A parent does not lose his rights over a child by voluntarily resigning the charge of it to another, and he is entitled to revoke any agreement into which he may have entered.(m) nardo. A widow placed her child in a home for destitute R. v. Barchildren, kept by the defendant, who, at her request, took charge of the child; when, five months later, the mother demanded back the child, the defendant, instead of delivering it up, sent it abroad with a third person, and in answer to a writ of habeas corpus issued at the suit of the mother, made a return that the third person would not give up the child, it was held that the return. was no answer, and that the defendant was liable to attachment.(m) SUMMARY. children. The law, then, as it at present stands, may be briefly Legitimate summarised thus. Primâ facie the father is entitled to the guardianship of his legitimate children, but if he is shown to be an unfit person to have such custody, the law will grant it to the mother. If the child is of tender years and already in the mother's custody, the Court will be very reluctant to transfer the custody to the father, unless he can show strong reasons for such a course being taken. The Court has in all cases an entire discretion in the matter; and though an appeal lies, the higher Court will not interfere with such discretion where it appears to have been properly exercised. Prima facie the mother is entitled to the guardianship Illegitimate (1) Kerr, in re, 24 L. R. (Ir.) 59. (m) R. v. Barnardo, 23 Q. B. D. 395. See also Kerrigan v. Hall, ante, p. 8, and R. v. New, 20 T. L. R. 583. children. Legislative changes. Industrial of her illegitimate child, at least during nurture (i.e., to the age of fourteen), but after her death the putative father has a prior claim over the guardian appointed by the mother. In applications for the custody of children, whether legitimate or illegitimate, the chief consideration of the Court will always be the welfare of the child itself. III. TRANSFERENCE TO A THIRD PARTY. The conception of the advisability of removing a child from the custody of both its parents was one so foreign to the ancient spirit of English law, that it is hardly surprising that it is only in very recent years we should meet with it at all. The first legislation dealing with the subject was obviously intended less in the interests of the children than for the protection of society against the danger of an hereditary criminal class. By the Care and Education of Infants Convicted of Felony Act, 1840, (o) power was given to the Court of Chancery to transfer an infant convicted of felony from the custody of its parent or guardian to the custody of any person willing to provide for its maintenance and education. The Court, however, was bound to satisfy itself that such transference was for the benefit of the infant, and no infant so transferred might be taken beyond seas out of the jurisdiction of the Court. This same principle was very largely extended, and more ample provision made for its satisfactory carrying out by the Industrial (p) and Reformatory (q) Schools Acts of 1866, and the Industrial Schools Amendment Act of 1880.() As the law at present stands, any child coming under any of the following descriptions may, if under the age of fourteen (or of the age specified in clauses 8 and 9), (0) 3 & 4 Vict. c. 90, post, p. 153. (p) 29 & 30 Vict. c. 118, s, 14, post, p. 139. (q) 29 & 30 Vict. c. 117; id. post, p. 132. (r) 43 & 44 Vict. c. 15, s. 1; post, p. 149. be brought before two justices or a magistrate and committed to an Industrial School: 1. Found begging or receiving alms (whether actually or under the pretence of selling or offering anything for sale. (s) 2. Is in any street or public place for the purpose of so begging or receiving alms. (s) 3. Found wandering, and not having any home or any settled place of abode. (8) 4. Found wandering, and having no proper guardianship. (s) 5. Found wandering, and having no visible means of subsistence. (s) 6. Found destitute, being an orphan.(s) 7. Found destitute, having a surviving parent in gaol. (8) 8. Children between five and thirteen, in respect of whom an attendance order has been made and not complied with. (t) 9. Children under twelve charged with an offence punishable by imprisonment, but not having been previously convicted of felony.(u) [Such conviction, if not followed by imprisonment, does not now disqualify: see 1 Ed. VII. c. 20, s. 1.] 10. Frequenting the company of reputed thieves. (s) 11. Frequenting the company of (x) prostitutes.(y) 12. Lodging, living, or residing with common or reputed prostitutes (y), or in a house frequented by prostitutes, for the purpose of prostitution.(y) 13. In a poor house or poor school, if either of its parents have been convicted of an offence punishable with penal servitude or imprisonment. (z) 14. Under the control of a mother convicted of a $) 29 & 30 Vict. c. 118, s. 14, post, p. 139. t) 39 & 40 Vict. c. 79, s. 12, post, p. 123. () 29 & 30 Vict. c. 118, s. 15, post. p. 140. (a) See Interpretation Act, 1890; read "a prostitute." (y) 43 & 44 Vict. c. 15, s. 1, post, p. 149. (z) 29 & 30 Viet. c. 118, s. 17, post, p. 140. "crime" after a previous conviction for a "crime," the child having no visible means of subsistence.(a) 15. Maintained in a workhouse or pauper school, and represented by the guardians to be refractory. (b) 16. Wilfully neglecting to attend at a day industrial school. 17. Wilfully refusing to conform to the rules of such school. 18. Any child as to whom his parent represents that he is unable to control him, and that he desires him to be sent to an Industrial School. (c) The school should be one conducted in accordance with the child's religious persuasion; if it is not, the parent or guardian may apply that the child shall be transferred to another school, (d) but the application must be made within thirty days of the child's reception at the first appointed school. (e). The order of detention is sufficient warrant for a child's conveyance, and detention at, the school named in it. (f) The expenses of conveyance are to be paid by the police.(g) After the expiration of eighteen months, the managers of the school may, by licence under their hands, permit a child to live out with any trustworthy and respectable person. (h) They have also power to apprentice children. (i) Children must not be detained in an Industrial School after the age of sixteen [now eighteen (k)], unless with their own consent given in writing.() The parent or person legally liable shall contribute a sum not exceeding 58. per week towards the maintenance of a child. (m) |