enactment may be made by the judge ordinary alone or with one 22 & 23 Vict. or more of the other judges of the Court. c. 61. CUSTODY OF INFANTS ACT, 1873. 36 & 37 VICT. C. 12. 1 From and after the passing of this Act it shall be lawful for the High Court of Chancery (g) in England or in Ireland respectively, upon hearing the petition by her next friend of the mother of any infant or infants under sixteen years of age, to order that the petitioner shall have access to such infant or infants at such times and subject to such regulations as the Court shall deem proper, or to order that such infant or infants shall be delivered to the mother, and remain in or under her custody or control, or shall, if already in her custody or under her control, remain therein until such infant or infants shall attain such age, not exceeding sixteen, as the Court shall direct; and further, to order that such custody or control shall be subject to such regulations as regards access by the father or guardian of such infant or infants, and otherwise, as the said Court shall deem proper.() 2 No agreement contained in any separation deed made between the father and mother of an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother: Provided always, that no Court shall enforce any such agreement if the Court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto. Court of Chancery may order that mother may have access to and custody of infant under sixteen years. In case of separation deed between father and mother. GUARDIANSHIP OF INFANTS ACT, 1886. 1 This Act may be cited as the Guardianship of Infants Act, Short title. 1886.(1) 2 On the death of the father of an infant, and in case the father shall have died prior to the passing of this Act then from and after the passing of this Act, the mother if surviving shall be the guardian of such infant, either alone when no guardian has been appointed by the father, or jointly with any guardian appointed by (g) Compare note (o), post, p. 157. (h) See ante, pp. 4 & 5, and the cases there cited. (i) See ante, p. 6, and the cases there cited. On death of father, mother to be guardian alone or jointly with others. 49 & 50 Vict. c. 27. Mother may appoint guardian, in certain cases. Powers of guardian. Court may make orders as to custody. the father. When no guardian has been appointed by the father, or if the guardian or guardians appointed by the father is or are dead, or refuses or refuse to act, the Court may, if it shall think fit, from time to time appoint a guardian or guardians to act jointly with the mother. 3 (1) The mother of any infant may by deed or will appoint any person or persons to be guardian or guardians of such infant after the death of herself and the father of such infant (if such infant be then unmarried), and where guardians are appointed by both parents they shall act jointly. (2) The mother of any infant may by deed or will provisionally nominate some fit person or persons to act as guardian or guardians of such infant after her death jointly with the father of such infant, and the Court, after her death, if it be shown to the satisfaction of the Court that the father is for any reason unfitted to be the sole guardian of his children, may confirm the appointment of such guardian or guardians, who shall thereupon be authorised and empowered so to act as aforesaid, or make such other order in respect of the guardianship as the Court shall think right. (3) In the event of guardians being unable to agree upon a question affecting the welfare of an infant, any of them may apply to the Court for its direction, and the Court may make such order or orders regarding the matters in difference as it shall think proper. 4 Every guardian in England and Ireland under this Act shall have all such powers over the estate and the person, or over the estate (as the case may be), of an infant as any guardian appointed by will or otherwise now has in England under the Act twelve Charles the Second, chapter twenty-four, or in Ireland under the Act of the Irish Parliament fourteen and fifteen Charles the Second, chapter nineteen, or otherwise. 5 The Court may, upon the application of the mother of any infant (who may apply without next friend), make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it may think just.(k) (k) See ante, p. 7. 6 In England and Ireland the High Court of Justice, in any division thereof, and in Scotland either division of the Court of Session, may, in their discretion, on being satisfied that it is for the welfare of the infant, remove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act, and may also, if they shall deem it to be for the welfare of the infant, appoint another guardian in place of the guardian so removed.(7) 49 & 50 Vict. c. 27. Power to Court to remove guardian. 7 In any case where a decree for judicial separation, or a decree Guardianship either nisi or absolute for divorce, shall be pronounced, the Court in case of divorce or pronouncing such decree may thereby declare the parent by reason judicial of whose misconduct such decree is made to be a person unfit to separation. have the custody of the children (if any) of the marriage; and, in such case, the parent so declared to be unfit shall not, upon the death of the other parent, be entitled as of right to the custody or guardianship of such children.(m) CUSTODY OF CHILDREN ACT, 1891. 1 Where the parent (n) of a child applies to the High Court (0) or the Court of Session for a writ or order for the production of the child, and the Court is of opinion that the parent has abandoned or deserted the child, or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the child, (p) the Court may in its discretion decline to issue the writ or make the order. or 2 If at the time of the application for a writ or order for the production of the child the child is being brought up by another person, or is boarded out by the guardians of a poor law union by a parochial board in Scotland, the Court may, in its discretion, if it orders the child to be given up to the parent, further order that the parent shall pay to such person, or to the guardians of such poor law union, or to such parochial board, the whole of the costs properly incurred in bringing up the child, or such portion thereof (D) See ante, p. 7. (m) See Manders v. Manders, ante, p. 7. (n) See definition in sec. 5, post. (0) The application may be made in either the Chancery or the King's Bench Division: see Goldsworthy, in re, 46 L. J. Q. B. 187. In questions relating to the custody and education of infants the rules (p) It is for the father, on apply- Power of Court as to production of child. Power to Court to order repay ment of costs of bringing up child. 54 Vict. c. 3. Court in making order to have regard to conduct of parent. Power to Court as to child's religious education. Definitions of parent and person. as shall seem to the Court to be just and reasonable, having regard to all the circumstances of the case. (9) 3 Where a parent has (a) abandoned or deserted his child; or (b) allowed his child to be brought up by another person at that person's expense, or by the guardians of a poor law union, for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties, the Court shall not make an order for the delivery of the child to the parent, unless the parent has satisfied the Court that, having regard to the welfare of the child, he is a fit person to have the custody of the child. 4 Upon any application by the parent for the production or custody of a child, if the Court is of opinion that the parent ought not to have the custody of the child, and that the child is being brought up in a different religion to that in which the parent has a legal right to require that the child should be brought up, the Court shall have power to make such order as it may think fit to secure that the child be brought up in the religion in which the parent has a legal right to require that the child should be brought up. Nothing in this Act contained shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice. (9) 5 For the purposes of this Act the expression "parent" of a child includes any person at law liable to maintain such child or entitled to his custody, and "person" includes any school or institution. (1) See ante, pp. 8 & 9, and cases there cited. IX. OFFENCES AGAINST THE PERSON AND SEXUAL OFFENCES. OFFENCES AGAINST THE PERSON ACT, 1861. 24 & 25 VICT. c. 100. Homicide. 5 WHOSOEVER shall be convicted of manslaughter (a) shall be Manslaughter. liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years-or to be imprisoned for any term not exceeding two years, with or without hard labour, or to pay such fine as the Court shall award, in addition to or without any such other discretionary punishment as aforesaid. any Acts Causing or tending to Cause Danger to Life or Bodily Harm. 18 Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to person, or shoot at any person, or, by drawing a trigger or in any other manner, attempt to discharge any kind of loaded arms at any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. 20 Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a (a) Manslaughter is the unlawful and felonious killing of another without any malice express or implied (R. v. Taylor, 2 Lewin, 215; see also ante, pp. 34 & 42). |