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XXVII. Exchange.

monalty have hereunto set their seal, and the said A. B.
hath hereunto set his hand and seal, the day and year first
above written (n).




THIS INDENTURE made the 18–, BETWEEN A. B., of in the colony of Victoria, Parties.

day of

(n) No witness is required to the execution by the corporation: Moises v. Thornton, 8 T. R. 303.

( The law of England, strictly speaking, knows nothing of The father is adoption, and does not recognise any rights, claims, or duties the legal arising out of such a relation

except as arising out of an express his children. or implied contract. “The law makes the father the guardian his children. of his children by nature and nurture: per Lord Eldon in Wellesley v. Duke of Beaufort, 2 Russ. at p. 21; and his right, except so far as limited by statute, is absolute against all persons whatever, including the mother of the children: Ex parte Skinner, 9 J. B. Moore, 278; Ex parte Glover, 4 Dowl. 291; R. v. Manneville, 5 East, 221; Ex parte Young, 26 L. T. 92. This is the rule of law, whether the father retains the children under his own care, or commits their custody to others : Ex parte McClellan, 1 Dowl. 81. By the stat. 36 Vict. c. 12, it is enacted (sect. 1) that, “From Court may

order that and after the passing of the Act it shall be lawful for the High Court of Chancery in England or in Ireland respectively, upon have access to hearing the petition by her next friend of the mother of any and custody infant or infants under sixteen years of age, to order that the of infant petitioner shall have access to such infant or infants at such under sixteen times and subject to such regulations as the Court shall deem years. proper, or to order that such infant or infants shall be delivered Royal assent, to the mother, and remain in her custody or under her control, or

24th April,

1873. 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.” In case of And by sect. 2 of the same Act, “ No agreement contained in

separation any separation deed made between the father and mother of an deed between infant or infants hall be held to be invalid by reason only of its father and


mother may


Australia, of the one part, and C. D., of &c., and E. D., his wife, of the other part. WHEREAS in the year 18—, the

Recitals (p).

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." As to this section, see further, tit. SEPARATION. The 3rd section of this Act repeals the Infants' Custody Act (2 & 3 Vict. c. 54), commonly known as Talfourd's Act, whereby similar discretionary powers were given to the Court on the application of the mother, when the child was under seven years


age. Parental The father may delegate his parental authority to a third authority may person, who will then stand in loco parentis to the child, so far be delegated. as is necessary for the purposes for which the child is entrusted

to his care : see Bl. Com. Bk. I. ch. 16, vol. i., p. 441. Grounds on

The authorities which show on what grounds the Court will which the interfere are collected in Simpson on Infants, chap. viii., pp. 136 Court will

et seq. The question will here be shortly discussed so as to interfere with parental

illustrate and explain the above Precedent. rights.

The High Court of Justice, inheriting the jurisdiction of the old Court of Chancery, will, on sufficient grounds, interfere with the father's rights with regard to the care and custody of his children, for their benefit. This jurisdiction is not confined to the Chancery Division, but in the exercise of such jurisdiction the rules of equity are to prevail : Re Goldsworthy, 2 Q. B. D. 75 ; see also stat. 36 & 37 Vict. c. 66, s. 25, sub-s. 10.

The principal grounds on which the Court will interfere are

as follows:(i) Miscon- (i) Unfitness in character and conduct, e.g., gross cruelty, or duct.

habitual profligacy: Ex parte Warner, 4 B. C. C. 101; Whitfield v. Hales, 12 Ves. 492; Warde v. Warde, 2 Ph. 786; Wellesley v. Wellesley, 2 Bl. N. S. 124; Re Cormicks, 2 Ir. Eq. R. 264; Swift v. Swift, 11 Jur., N. S. 148, 458; Re Goldsworthy, 2 Q. B. D. 75. See also the celebrated case of Shelley v. I'estbrooke, Jac. 266, n., where Mr. Shelley proposed to bring up his children as atheists: and compare the case of Re Besant, 11 Ch. D. 508, where the Court of Appeal held that where a child


(p) It will be seen from the remarks in note (o) that the enforcement of a contract for the adoption of a child against the father must always be a matter of some doubt, and must depend upon the circumstances of the particular case; and that the preparation of such contracts will require great care on the part of the draftsman.

Particular attention should be paid to the recitals, which should be so framed as to present, in their clearest light, so far as the father can be induced to admit them, all circumstances which tend to show that it is for the manifest benefit of the children that they should remain in the charge of the adoptor, and that the father should not be permitted to reclaim them at a future

said A. B., being then in embarrassed circumstances, departed XXVIIT

Adoption. from England, intending to reside in Australia, and left his

was, by agreement in a separation deed, committed to the mother's custody, her refusal to give or allow to it religious instruction, and the publication by her of an immoral work, were in themselves sufficient grounds for removing the child from her custody. But in that case the Court did not decide whether or not the same grounds would be sufficient to deprive a father of the custody of his child: per James, L. J., at p. 518. Mere harshness of temper is not sufficient; Blake v. Lord Wallscourt, 7 L. T. 545; nor past irregularity of life ; Re Halliday, 17 Jur. 56; nor even present immorality, if not such as would corrupt the morals of the children; Re Spence, 2 Ph. 247; Ball v. Ball, 2 Sim. 35 ; and see March v. March, L. R., 1 P. & M. 437. But the Court will exercise a larger discretion where the application for custody of children is by the mother: in such cases the Court will take great care that the father does not insist on his parental rights as a means of compelling the mother to forego her remedies against him for marital misconduct; Warde v. Warde, 2 Ph. 786 ; and will also pay_great regard to the interests of the children: Re Halliday, 17 Jur. 56. See also Re Taylor, 4 Ch. D. 157.

(ii) Want of means for the support of the children. Mere (i) Insol. poverty does not constitute unfitness; Curtis v. Curtis, 5 Jur., N. S. vency. 1147; there must be actual insolvency, coupled with desertion, Re England, 1 Russ. & M. 499; or with immoral conduct, Ex parte Warner, 4 B. C. C. 101; Ex parte Mountford, 15 Ves. 445; or some other concurrent ground for the Court's interference.

(iii) Waiver by the father of his rights over the children. (ii) Waiver. “Even a father himself may lose the right to the custody of his child, by allowing it to be brought up by other persons, if it becomes the manifest interest of the child not to be removed from the custody in which it has been placed:” per Mellish, L.J., in Andrews v. Šalt, L. R., 8 Ch. at p. 640. And in the leading case of Lyons v. Blenkin, Jac. at p. 255, Lord Eldon, C., said: “Here is a fund provided for the maintenance and education of these children, and I think I am properly warranted by the authorities in asserting that if a testator thinks fit to provide a fund for the maintenance and education of children during their minorities, and at the end of that period makes a further provision for them, and the father permits their maintenance to be supplied from that source, allowing them to be brought up with expectations founded upon a particular species of maintenance and education which he himself cannot afford to give them, he is not (unless I greatly mistake the matter), according to the principles of this Court, at liberty to say, I will alter the course of education of my children by applying more scanty means to the purpose, and I will not permit them to have the benefit of that sort of maintenance and education which they have hitherto had; and in consequence of which their views in life are very different from what they would have been without it." In order to induce the Court to interfere, there must be not merely expectations, but some immediate irrevocable provision for the


two daughters, F. B. and G. B., now aged seven and five years or thereabouts, respectively, in the care of the said C. D. and E. D., and the said children have ever since that time continued to reside with, and have been maintained and educated by the said C. D. and E. D.: AND WHEREAS the said A. B. has no present intention of returning to England, and cannot now afford to give to his said children such

(iv) Agreement.

child: Anon., Jac. 264; S. C., cited sub nom., Jackson v. Hankey, in Chambers on Infants, p. 27.

In Warde v. Warde, 2 Phil. 786, children were taken from the custody of their father, who had been guilty of gross misconduct, although there was merely an undertaking on the part of their uncle for the maintenance of the children. See also Creuze v. Hunter, 2 B. C. C. 500; S. C., 2 Cox, 242; Jac. 250, n.

But in the case of Re Fynn, 2 De G. & S. at p. 480, Knight Bruce, V.-C., expressed a doubt whether under such circumstances an undertaking ought to be sufficient, and stated his impression that some actual appropriation of property or income, or some security, should be required.

(iv) Agreement that other persons shall have charge of the children. The question of agreement between husbands and wives as to the custody of their children will be considered in a subsequent volume, sub tit. SEPARATION.

Where a third person by permission and acquiescence of, or by agreement with the father, obtains the custody of children, and the arrangement is acted upon, so that the revocation of the permission or agreement would be detrimental to the children, the father will be restrained from exercising his parental rights: Lyons v. Blenkin, Jac. 245 ; Colston v. Morris, Ibid. 257; 8. C., 6 Mad. 89; Powell v. Cleaver, 2 B. C. C. 500; Andrews v. Salt, L. R., 8 Ch. 622. But before the agreement is acted on, the father


rescind it. See Hill v. Gomme, 1 Beav. 541. (v) Where the father is resident or intends to reside out of the jurisdiction. The mere fact of such residence is sufficient to enable the Court to interfere ; Wellesley v. Duke of Beaufort, 2 Russ. at p. 18; and although a father residing abroad has the right to nominate a person to take charge of his children in this country, the Court will disregard the nomination if it was apparently made under a misapprehension, and is injurious to the children: Re Suttor, 2 Fost. & F. 267. A ward of Court cannot be removed out of the jurisdiction without leave of the Court; Mountstuart v. Mountstuart, 6 Ves. 363; and an injunction will be granted to restrain the father from such removal. See De Manneville v. De Manneville, 10 Ves. 56; Re Fynn, 2 De G. & S. 457. As to circumstances under which leave will be given, see Re Thomas, 22 L.J., Ch. 1075; Re England, 1 Russ. & M. 499; Clogstoun v. Walcot, 9 Jur. 649. The Court will not, in the case of infants, the subjects of a foreign state, and resident in this country, interfere with the discretion of guardians properly appointed by the Courts of that state in removing the infants out of this country : Nugent v. Vetzera, L. R., 2 Eq. 704.

(v) Residence abroad.


maintenance and education befitting their station in life, as


Adoption. they have hitherto enjoyed: And WHEREAS the said C. D. and E. D. are willing to adopt the said children, in manner hereinafter appearing, and subject to the conditions hereinafter contained, and on the part of the said A. B. to be observed. NOW THIS INDENTURE WITNESSETH that it is Agreements hereby agreed and declared, and the said A. B., so far as relates and covenants

for adoption, to the acts and stipulations on his part to be observed and per- maintenance, formed, hereby covenants with the said C. D. and E. D., and each of them, the said C. D. and E. D., so far as relates to the acts and stipulations on his and her part to be performed and observed, covenants with the said C. B. as follows, that is to say:

1. The said C. D. and E. D. shall adopt the said F. B. and G. B., and shall, until the said F. B. and G. B. shall respectively attain the age of twenty-one years or marry under that age, maintain, board, lodge, clothe, and educate them in a manner suitable to their station, and as if they were the lawful children of the said C. D. and E. D., and shall at the cost of the said C.D. and E.D., and of the survivor of them, provide the said children with all necessaries, and discharge all the debts and liabilities, if any, which the said F. B. and G. B. or either of them

may incur for necessaries or otherwise, and indemnify A.B.against all actions, claims and demands in respect thereof.

2. The said A. B. hereby nominates and appoints the said Appointment C. D. and E. D., during their lives, and after their respective of guar

dians (c).

(c) By the stat. 12 Car. 2, c. 24, sect. 8, a father, even though Appointment a minor, was empowered to appoint a guardian of his children of adoptor as by deed or will, by the Wills Act (1 Vict. c. 26), sect. 7, the guardian. power of appointing a guardian by will is taken away from infant fathers, but the power of appointment by deed is left untouched. The father alone can appoint under the statute; a mother has no legal power to appoint guardians: Re Kaye, L. R., 1 Ch. at p. 390. See also as to illegitimate children, Ord v. Blackett, 9 Mod. 116. A deed appointing a guardian is, in some respects, of the nature of a will in having no operation during the father's life, and in being revocable at pleasure. See Macph. Inf. 83. But although a person appointed by deed has, strictly speaking, no authority as guardian until the father's death, yet the father by consent and acquiescence may enable the guardian to act, so as, with the other circumstances of the case, to induce the Court to restrain the father from removing the children from the care of the person so appointed. See Lyons v. Blenkin, Jac. at p. 263. An appointment of a guardian by deed is revoked by a subsequent appointment by will; Earl of Shaftesbury v. Hannam, Finch, 323 ; but a covenant not to B,- VOL. 1.


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