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INTERNATIONAL STATUTES AND CONVENTIONS RELATING TO CHILD CUSTODY AND GUARDIANSHIP: COMPARATIVE STUDY
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INTERNATIONAL STATUTES AND CONVENTIONS RELATING
TO CHILD CUSTODY
AND GUARDIANSHIP: COMPARATIVE STUDY
AUTHORED
BY - SAYRA KAKKAR
Abstract:
This
comparative study explores international statutes and conventions pertaining to
child custody and guardianship, emphasizing the evolving recognition of the
social interest in safeguarding childhood. Across various jurisdictions, there
is a growing acknowledgment of the imperative to ensure that every child
develops into adulthood without hindrance. This shift entails prioritizing the
welfare of children over parental rights in legal adjudications. The English
legal framework for custody and guardianship, while not consolidated into a
single enactment, reflects this trend through a mix of statutory and
non-statutory provisions. Over the past century, legislation in this area has
increasingly delegated regulatory authority to the state, with parental rights
taking a backseat to the paramount concern for the child's welfare.
Additionally, this study briefly explores notable features of Roman law before
delving into English legislation on the subject.
Keywords:
child custody, guardianship, welfare of the child, parental rights,
international statutes, comparative study, legal framework, legislation, state
regulation, Roman law.
1. Introduction:
The modern law all over the world is now veering around the proposition
that there is a social interest in
the protection of childhood; a child is to be accorded protection just because
it is a child and “its birth within or without the lawful wedlock is hardly a factor to be taken into consideration.” The modern world
is also accepting, now more readily,
that there is a social responsibility to see that every child grows into
adulthood as a normal human being
without any drawbacks or inhibitions. Guardianship laws of most countries
now accept that in all adjudication in respect of children, the uppermost
consideration is the welfare of children so much so that even parental rights are subordinated to it.[1]
The
English law of custody and guardianship of children introduced not found or
codified in one single enactment. So much of it is statutory is scattered in several enactments. Part of it is still non-statutory.
Legislation on the subject, particularly the statutes passed during
the last and half a century
or so, shows that much of the field
has come to be regulated by the
State. The rights of the parents have
receded into the background, while the welfare of the child has come into the foreground.
Before
we deal with the legislation in England it would be appropriate to refer
certain interesting features of the Roman law.
2.
Position
of minor in earlier Roman law
In the early days, no other nation dealt with the subject of minors and
their guardians so distinctly and elaborately as the Romans.
In their early concept, they realized the necessity
of guardians for the orphans
predominantly. The right and duty bearing unit was the family (familia) with its eldest member (pater
familias) as its head and not any individual.
While the children were under the father's power (potestas), their care and protection were not the concern of Roman Public Law. In early Roman thinking, attainment of puberty simply was not
tantamount to sufficient maturity to look after one's own affairs. The age of puberty was “14 years for males and 12 years for females.”
The
two distinct classes of guardians in vogue for all orphans, males and females,
were known as- (i) tutors (tutela impuberum) and (ii) curators
(curaminorum). They were only in vogue respectively till the attainment of puberty and for person
sui juris, i.e. till the period below the age of 25 years.
Originally
the nearest male agnate (tutela agitima) and in the absence of an agnate the nearest
cognate and, according to Justinian, the nearest capable ascendant was eligible to be “tutor” or a statutory
guardian. Testamentary guardians
had preference over such “tutors”. In case of non-availability of
such persons, Roman Magistrates used to appoint tutors dative after having them satisfied about such appointee's
fitness, either with or without
security. The mother of the infant had no power whatsoever to appoint a regular testamentary guardian. With the
confirmation of the court, she could, however, appoint a guardian for the property she was leaving for a minor
child.
Tutors auctoritus was a legal necessity to bind down the minor sufficiently. During Justinian
time, the appointment of a curator was obligatory when the minor wanted to (i) engage in a law suit; (ii) receive
payment of debts, and (iii) have accounts
of administration from the
former tutor. The functions of tutor and curator were practically confined to administration of the minor's
estate. The person of minor, so to say, was no
concern of them.
3.
Statutes
relating to minor under English
law
3.1.
Position prior to 1989
English law in the early days recognized various kinds of guardianship, which are no longer
in existence. Guardianship was more a right than an obligation. Guardianship
was rooted in the feudal system: guardians were largely
concerned with the property of the child heir. “The Court of Chancery
developed the concept of the Crown as parens patriae for infants who needed protection. Guardianship became the instrument for maintaining the father's authority
over the children.”[2]
3.1.1
Talford's
Act 1839:
It is the Talford's Act 1839,[3]
since when right gradually developed into an obligation. Paternal control which was wide and sweeping
over the infant's
person was least concerned
with its property. Along with the principle of "welfare of the
child," there commenced gradual
burdening of paternal
control with obligations. Father's absolute right over his children appears
clearly from Lomlly,
in re,[4]
where Vice-Chancellor Bacon observed that the Court of Chancery
had "no right to interfere with the sacred right of the father over his children." The same view was taken in King v. De Mannerville[5] and R. v. Henrietta.[6] It was indicated by Lord Chancellor Elden that the Court of Chancery
could, by way of superintendence, exercise the jurisdiction in case of father's unwillingness or inability to discharge
his duties or when he was actively proceeding
against normal paternal rights. In his view, the superintending power
over such children, who could not take care of themselves and had not the benefit
of that care, should rest with the Court of Chancery.
In Wellensley
v. Wellensley,[7] Lord
Redsdale opined that where father
had abused his right by himself
living in adultery
and encouraging his children in swearing and in keeping low company, the court had the power to intercede. They were all cases before the Talford
Act, when in British Common Law mother had absolutely no right whatsoever even with respect to the custody of or access to her children.
But even then the Chancery
Court, in Takbat and Earl of
Shrewsbury, intervened in the matter and gave
the custody to the mother in preference to that of testamentary guardian, but
made it sufficiently clear that the mother had under the law on right whatsoever to intervene with a
testamentary guardian. In Ball v
Ball, whatsoever, the court refused
the mother not only the custody
but access too. It is, however, awfully
clear that the Chancery Court refused to interfere with the
father's right over his children except under very exceptional circumstances of gross misconduct or serious unfitness.
By the Talford's Act 1839, “in the interest
of the child,”“the mother's right to have
custody up to the age of the seventh year of the child” and also her
“right of access” was recognized,
where the mother was not guilty of adultery. Thus, the idea of welfare of the child came in prevalence. But this did not prove adequate against
the absolute domineering right of the father over his
child, which was unfeasible to interfere under the Common Law unless gross misconduct
on the part of the father was established.
Where marriage of parents of the infant was the subject matter of the
proceeding under either Matrimonial
Causes Act 1857, or Matrimonial Causes Act 1859, the Courts were vested with wide jurisdiction in “matters relating
to custody, education and maintenance of the child.” But even then the
position of either of the parents remaining practically the same as before s. 25 (10) of the Judicature Act 1873, first provided for the
prevalence of “rules of equity in matters relating
to custody and education
of infants.”
a.
Custody
of Infants Act, 1873
In the same year, repealing
the Talford's Act 1839, the
Custody of Infants Act 1873 was passed raising the age of the child to 16 years for the purpose of custody with the mother and introducing the corresponding right of the father's
and the guardian's access. But even
this Act not having proved sufficient to impinge the father's right, the
passing of the Guardianship of
Infants Act 1886, and the Prevention of Cruelty to and Protection of Children Act 1889, was necessary. The former Act recognized the mother as a guardian for her
children on the father's demise and empowered her to appoint a testamentary guardian.
She was also given equal right with the father
regarding custody of and access
to children.
b.
Guardianship of Infants Act, 1886561
This further extended
the provision of the earlier
Acts by empowering the court to give the mother custody until of her children
till they reached the age of 21. Furthermore, the father was now stopped from defeating the mother's rights after
his death by appointing a testamentary guardian,
for it was enacted that the mother was to act jointly with guardian
so appointed, and for the first time she herself was given limited
powers to appoint a testamentary guardian.
c.
Custody
of Children Act, 1891
Then the Custody of Children Act 1891 was introduced for empowering the
court to refuse custody to the
parents in case of desertion or abandonment of the child. It provides that if a parent has abandoned or deserted his or her child”, the burden
shall
shifts on them to prove that they are proper and suitable
for custody claimed and that the
court may refiise to give him possession of the child altogether (Section
1). Moreover, “if at the time of parent's application for custody the child is being brought
up by another person, the court may now, upon awarding
custody to the parent, order him to pay the whole or part of the costs incurred in bringing
it up.”
d.
Guardianship of Infants Act 1925[8]
It may be noted that the Act of 1925 gave the
statutory effect of the rule
that in any custody dispute, the court must consider its “welfare as the first
and paramount consideration.”
It also completed the process of assimilation of the parent's rights by enacting that neither the father nor the
mother should from any other point of view of
superiority to the other and by giving to the mother the same right to appoint
testamentary guardians as the father.
In
[1893] 1 ch786, Lord Justice Lindley In re, McGrath for the first time laid
down categorically that, “the moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection
be disregarded.”He indicated that the
supreme consideration should be "the welfare of the child”as incorporated
in the Guardianship of Infants Act 1925.
In the matters of guardianship and custody of children like powers to apply were recognized
under this Act for each of the parents, the paramount consideration being welfare of the infantas a ipso facto
principle took its evolutionary wings for the first time vide this Act and the aspects of pernicious dominance of gender
disparity was on verge of dissolving.
e.
Children
Act of 1953
The position in 1953 was as follows:
"Subject to this fundamental principle (welfare of the child) an infant's father still remains his sole
legal guardian during his (the
father's) life time, but this fact,
of 67 Chapter-II courses, adds little, if anything, to the father's primary position as a parent. On the
father's deed, the infant's mother becomes, either sole guardian or guardian
jointly with a guardian appointed
by the deed or will of the father, or, in default,
by the court. And even during the father's life time, the mother has the same right to apply to the court in
respect of any matter affecting the infant as the father has, and an equal right to appoint by deed or will a guardian to
act after her death as co- guardian
with her surviving husband, or if he is dead, the Guardian appointed by him. In the event of differences of opinion between
the surviving parent and the guardian appointed by the deceased parent, the court may
award sole custody of the infant to either, as it may consider best for the welfare of the infant"
f.
Guardianship of Minors Act 1971[9]
The Guardianship of Minors Act 1971 was passed consolidating provisions of “guardianship and custody of minors” by
repealing the Acts of 1886, 1925 and 1951. Sections
1 to 6 of that Act provided that, the court shall consider the welfare of minor
in custody or the administration of any property belonging to minor.
“The
provisions relating to custody, upbringing of minors are to be decided” is thus
laid down in the Act of 1971. “Where
in any proceedings before any court (Whether or not a court as defined in section 15 of this Act): The custody or
upbringing of a minor; The administration of any property
belonging to or held on trust for a minor,
or the application of the income thereof is in question, the court, in
deciding that question, shall regard
the welfare of the minor as the first and paramount consideration, and shall not take
in to consideration whether, from any other point of view, the claim of the
father, or any right at common law
possessed by the father, in respect of such custody, up-bringing, administration or application is superior
to that of the mother or the claim of the mother is superior to that of the father”.
g.
Children
Act of 1973
It provides “the equality of parental rights” in these terms: “1 (i) in
relation to the custody on upbringing
of a minor, and in relation to the administration of any property
belonging to or held in
trust for a minor or the application of income of any such property, a mother shall have the same rights and authority
as the law allows a father and the rights and
authority of mother and father shall be equal and be exercisable be
either without the other.”There is
inherent and discretionary
jurisdiction with the high Court relating to wardship.
Finally, the law relating to Habeas
corpus, in so far as it deals with
the recovery of minors below the age
of discretion is also relevant side by side with this legislative developments as to guardianship and custody, legislative
measures for the welfare of the children
have come in quick succession with the passage of latest Act on the subject Children
Act 1975. This branch of the law has become a fairly complex one in England. The object of legislation relating to children
is “to provide for the care, protection, maintenance welfare, training, education and rehabilitation of
neglected and delinquent children and for
the trial of the later.”
3.2
POSITION
AFTER CHILDREN ACT 1989
3.2.1. Children Act 1989
Numerous pieces of previous legislation have now been repealed and replaced by the Children Act 1989[10]
and it inducted fundamental changes at least in three basic concepts namely 1.
a. Parenthood replacing guardianship.
b.
Parental responsibility replacing the concept
of parental rights and duties.
c. Introducing new powers to make residence
orders rather than custody orders.
“In order to safeguard and to promote
welfare,” the Act of 1989 allotted duties to authorities, courts, families and
agencies. The prime concern of the Act is best cared within their own homes. It also provides provisions for
statutory bodies’ n case when parents and families
do not cooperate.
3.2.1.1.
Welfare of the child
“The welfare of the child is
the prime concern of the courts.” It also notified that in
case of delay in adjudication of child’s cases will have
an impact on a child’s welfare. The court while deciding the particular case should take into
account “age, sex, background, child
wishes, emotional and educational needs which likely effect of the change on
the child, parent’s capacity
to meet child needs and powers of the courts.”
3.2.1.2.
Parental responsibility
Section 3 of the Act has defined the word parental responsibility.574
It is the responsibility of parent
towards the child and his property. Section 4 talks on the responsibility of both when both have legally married to each
other, if they are unmarried at the
time of birth of the child, the father of the child may apply
for parental responsibility to court
or by mutual agreement. It can be
decided between the mother or child and father. Section 5 of the Act provides that “guardian may be
appointed if there is no one to take care with
parental responsibility.” Section
6 of the Act provides
that an appointment of guardian can be changed vide the application of the parent.
The court can order to submit reports to courts on
the welfare of the
child.
3.2.1.3
Different
Orders in the family proceeding
Besides two new orders
have been introduced by the Act, one is the ‘prohibited steps orders' and the
other is 'Specific issue orders'.
a.
Contact order: it is an order which requires the person to allow (with whom child
resides) to contact with another person.
b.
Prohibited steps orders: it prohibits a parent from exercising full parental responsibility without the cogent approval
of the court.
c.
Residence order: (child arrangement order) arrangement for which a child should live with. The person who wins the order has parental
authority over a child.
d.
Specific issue order: order relating to parental responsibility for a child.
e.
Family assistance order: probation officer
or any officer is directed
to advice, assist the family.
All these orders are passed under s. 8 of the Act. Again s. 44 of the Matrimonial Causes
Act 1973 has been amended so as to direct the courts while dealing with
divorce, nullity or judicial separation proceedings to consider
“whether there are any children
of the family to whom this section
applies and where there are any such children, whether
The court should exercise any of its powers under the Children Act 1989
with respect to any of them.”
Section
41 would apply to “children under the age of 16 years and they must be of the family,”
i.e. in relation to the parties to the marriage
which would cover adopted child
and child privately fostered and treated the member of the family.
Section 8 of the Children Act 1989 is an important feature
of the statute and emphasizes the well-being of the child, which should be
a pre-eminent or imperative
consideration with the court, being the pivotal principle of any court determines any matter in
reference to “(a) the upbringing of
the child; or (b) the administration of the child's property or income, the welfare of the child is the
fundamental consideration of the
court.”
Section 10 of the Act formulates provisions concerning who is competent enough to apply for the order. Any party to a marriage in relation to whom
the child is a child of the family
besides parents and guardian are naturally
competent to apply. Even the child himself
and anybody, authority or
organization professionally concerned with children who are not otherwise entitled
To apply, to ask for “leave of the court to apply for section
8 orders.” So under the
present law even the child may apply for leave without a next friend and while granting the leave the
court must be satisfied that the child has sufficient understanding in making
the proposed.
Again under the Children
Act 1989 guardianship is distinguished from parenthood and so a guardian from a foster parent. The
children Act made parenthood not guardianship the primary concept, parental responsibility replaced parent’s rights
and duties and the courts
now make decisions
about the child's residence and not custody.“The concept of parental responsibility means the power of
the parent in term of responsibility not rights and locates the objection to come for children with the parents
not with the state. Modern concept is
based on "custody" was used to describe “the primary responsibility
for the up- bringing of children” rest on their
parents. the term custody was used to describe a fact the child being under the adult's
physical control, a child custody and a state of law the rights, control the child physically, that is, legal custody.
The
law of guardianship is now exclusively controlled by the 1989 Act. Parents are
no longer regarded as guardians and generally, no guardians
will be parents. Any parent or any guardian may appoint a guardian for
the minor if the minor is under 18 yrs of age.
“Such appointment is made in writing and signed by the persons who made
it.” The court may on its own
appointed guardian or any interested person or the child himself may seek leave to appoint
any person as guardian.
The adoption
law has also been substantially amended and proceedings under the Adoption Act 1976 have been designated by
s. 8 (4) of the Children Act 1989 as family proceedings'.
The courts are now to make s. 8 orders in this field as well as of making an adoption
order keeping in mind the child's welfare
of paramount consideration. The Adoption and
Children Act 2002 have made significant amendments to the provisions of the Children Act 1989. “The Welfare Reform and Provisions Act 1999, the Child Support, Pensions and Social Security Act
2000 and Human Rights Act 1998 have a great impact
on the status of the children.”[11]
CONCLUSION
In India Guardians and Wards Act was passed by Britishers with the legacy
of common law and keeping the supremacy of parental rights
in custody and guardianship. Still section
7 and Section 17 of the Act were available for courts to act in “welfare of the
child.” Section 19 and Section 25 of the Act of 1890 subordinate to the
supremacy of the father. The concept of “welfare of the child” has been
mentioned in the Act of 1890.624 However it is a thread that is
visible at some place but gets blurred elsewhere by being entangled with
others. It needs now to be painted in glowing colours.
The
laws of guardianship and custody has come a long way from absolute power over
children to evolution of principle of “welfare of the child to be the sole and paramount
consideration” in deciding guardianship and especially custody. This evolution
happened has been extensively been discussed in the present research.
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[1] “Guardianship of Minors Act 1971” § 1, “Hindu Guardianship Act 1956” § 13, Kvartshav v. Redkova no. 36/677, (1946) 9 Sud. Park, USSR 4.
[3] FLAVIA AGNES,
FAMILY LAW: Vol. 2: MARRIAGE, DIVORCE, AND MATRIMONIAL LITIGATION, Oxford University Press.
[7] De Mannerville v. Mannerville (1804)10 Ves 52; 56 RR 348.
[8] R. W. VICK, C. F. SHOOLBRED, ELSEVIER, THE ADMINISTRATION OF CIVIL JUSTICE IN ENGLAND
AND WALES: p. 84, 18-May-2014
[10] British Medical Journal, Children Act 1989, BMJ, Vol. 299, No. 6714 (Dec. 16, 1989), pp. 1482- 1483 (2 pages)
[11] Gillick v. West Norfolk and Wisbech
Article Information
INTERNATIONAL STATUTES AND CONVENTIONS RELATING TO CHILD CUSTODY AND GUARDIANSHIP: COMPARATIVE STUDY
Authors: SAYRA KAKKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/01
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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