Quis Custodiet?



The rule of law that a father is the natural guardian of his legitimate child is abolished.

The Children Act 1989, Section 2



Who should have custody of the children when a couple divorce?  Most couples agree the children should live primarily with Mum and that Dad should have regular contact.  This arrangement is what parents believe is expected of them and is what they think the courts would order, thus they can be said to be ‘acting in the shadow of the law’.  There are flaws in this arrangement, however.

  1. First, it is not in the children’s best interests: the wellbeing and development of children who have a significantly reduced relationship with one parent – generally their father – will suffer compared with those who grow up with both parents;
  2. Secondly it creates a power imbalance between the parents, bestowing  greater power on the ‘primary carer’;
  3. This teaches the primary carer that she is more important in the child’s life, encouraging further abuse of the status conferred, and that the other parent is unimportant, leading many ‘contact’ parents to be marginalised or to abandon the relationship;
  4. The further such arrangements depart from equality the less stable they become, and the more likely it is that the relationship between parent and child will diminish and even end entirely.

This tension, between what is best for a child and what a court is likely to order, leads many parents to dispute the custodial arrangement, if not at the point of separation then at some time later; in 2012 117,500 children were involved in these disputes (Ministry of Justice, 2013).  And yet in the 19th century the question of custody rarely arose – it was almost always awarded to the father: in 1839 a father sought the return of his children in order to force his wife to return to the marital home into which he had installed his mistress.  The court duly obliged (Rex v Greenhill, 1839).  As late as 1883 Lord Justice Bowen said, ‘the father knows far better as a rule what is good for his children than a court of justice can’ (Re Agar-Ellis, 1883).

In the first of two chapters I shall explore how this situation changed.


The law long regarded authority over a child as something to be awarded through the medium of ‘guardianship’, and for most of our legal history the natural guardian of the child was his father.  There has always been a need, though, in the event of a father’s death, incapacity, destitution or absence, for the state to step in as guardian of last resort.  Guardianship combined legal authority over a child with a duty of care towards the child’s person and his property.  In feudal Britain there were two forms of guardianship.  The first, Guardianship in chivalry, arranged for a guardian to provide for the maintenance of an unmarried male heir who had inherited before reaching the age of 21.  The lord’s duty towards his ward was balanced by his right to the ward’s person and lands until he came of age.  This was a property right and so it could also be transferred or sold.

Guardianship in socage applied when the land was held in ‘socage’ tenure by the ward (in which arrangement land was held in tenure from the lord but passed from one generation to the next), the guardian had a greater duty towards his ward than the guardian in chivalry who was more concerned with his own interests; it terminated at the age of 14.

Guardianship was based on duty, with rights accorded only so far as they enabled performance of that duty.  Failure to perform justified removing the child from the guardian’s custody, but only where guardianship benefited the child; where it benefited the guardian the court could not intervene.  It is in this custom of guardianship that child protection has its origin.  This principle of duty came to be applied to parents; the law was based not upon custody, but upon guardianship, and thus a father who failed in his duty or abused this trust risked having custody taken from him.  On the death of a father the mother could become ‘guardian for nurture’ of all his legitimate children under the age of 14 (but not of their property), provided there was no other claim.

Guardianship was not merely a legal nicety; it entailed serious obligations and duties: the law imposed sole liability for their children on fathers to ensure they did not abandon their responsibilities or let the financial burden fall on others.  Fathers could not contract out of these obligations and could not transfer guardianship to another; in particular they could not transfer it to their wives.  The reason was simply economical: only fathers had the means to provide their children with food, shelter, education and security.  Few women had financial independence, and an economically inactive woman would simply not have been able to fulfil this role.  For most the law was irrelevant anyway: divorce and separation were rare and while the father was alive a mother had no need of guardianship; if he died she could become her child’s guardian.  A woman was only legal guardian to her illegitimate children because they had no legal father to act as guardian, unless she married.

In the early nineteenth century the law still generally yielded to the father as the best person to make decisions for his children.  This situation is popularly illustrated by the case of De Manneville (De Manneville v De Manneville, 1804) (The King against De Manneville, 1804).  Leonard De Manneville was a poor French immigrant who had married a wealthy Englishwoman; at a time of war with France he was at risk of deportation.  His wife had fled the brief and violent marriage, taking her eight-month-old daughter with her.  De Manneville ‘by force and stratagem’ entered his estranged wife’s house, tore the girl from her mother’s breast and abducted the ‘almost naked’ child in an open carriage in ‘inclement weather’.  The King’s Bench refused the mother’s application for the child to be returned: a father was entitled to total custody and control over the children of a marriage and could prohibit all access by a mother to her children.  The mother turned to the equity courts, which would not interfere unless the child had property or his life was at risk.  Although some consideration was given by the courts to a child’s welfare, none was given to a mother’s independent right of custody or access, which she had forfeited on her marriage.  This concept of ‘coverture’ is defined in Blackstone’s Commentaries:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything (Blackstone, 1765).

Coverture meant that the base unit of society was the married couple, not the individual, and it made the husband responsible for all his wife’s actions, to the extent that he could be imprisoned for her misdemeanours.  A vindictive wife could ruin her husband, spending money he did not have, knowing she would not be held responsible for the consequence.  It was the law of coverture which prompted Mr Bumble to declare in Oliver Twist, ‘the law is a ass – a idiot.  If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience’ (Dickens, 1838).

De Manneville continued to influence custody decisions even where the father posed a clear risk to the child: a father had a right to take his child and the court had no right to intervene (Ex Parte Skinner, 1824).  In the case of Ball a mother obtained a divorce a mensa et thoro from her husband who was living with his mistress (Ball v Ball, 1827); she sought custody of their child but was refused – note that this would also have denied her access,

This court has nothing to do with the fact of the father’s adultery, unless the father brings the child into contact with the woman.

Challenges to fathers’ power over their families could be made when fathers were physically abusing their children, failing to provide for them, or had relinquished their custody to others (Wardle & Nolan, 2002).  This idea that the courts had responsibility to intervene in order to protect children’s welfare is termed the parens patriae rule and derived from the authority of the monarch as ‘parent of the nation’; steadily it displaced the patriarchal rule.  The Court of Chancery owed its jurisdiction of parens patriae from the Crown: it could confer wardship and appoint guardians; judges in Chancery were more willing to intercede than those in common law: it was the court’s duty to protect, maintain and educate the child through the guardian.  Lynn Wardle and Laurence Nolan state that ‘more accurately, the patriarchal rule subsided from a rule to a presumption (that it would be in the best interests of the child to be raised by father)’ (Ibid).  With hindsight we can see the state beginning to usurp the authority of the parent.  Master of the Rolls Lord Esher explained the parens patriae rule,

It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was put to act on behalf of the Crown, as being the guardian of all infants, in the place of a parent, and as if it were the parent of a child, thus superseding the natural guardianship of the parent (Regina v Gyngall, 1893).

A century later, with the introduction of the Children Act 1989, another Master of the Rolls, Lord Donaldson, would say,

[The] jurisdiction [of a court exercising the power of parens patriae] is not derivative from the parents’ rights and responsibilities, but derives from, or is, the delegated performance of the duties of the Crown to protect its subjects and particularly children (Re R (A Minor) (wardship: medical treatment), 1991).

Thus for Lord Donaldson the power was no longer paternal and ‘derivative’ and the Children Act conferred on the court powers significantly greater than those possessed by a parent.

The Chancery Court was the first to introduce the argument of the child’s interests as justification for limiting a father’s rights in cases such as Smith (The King versus Penelope Smith, 1763) and Wellesley v Duke of Beaufort (Wellesley v Duke of Beaufort, 1827).  In the case of Smith the court allowed the child, aged almost 14, to decide for himself whether to remain with his aunt or to return to his father; the child was unwilling to return and the court would not force him.  The Duke of Beaufort lived in adultery with a married woman and was deemed a ‘man of immoral and irreligious habits’; in 1827 the court deprived him of the custody and education of his children and the decision was upheld by the House of Lords.  Such custody proceedings focussed on the grounds for intervention: the presumption of care had to be displaced before guardianship could be transferred.  Thus a father’s right to custody was subject to the child’s welfare, and a father’s authority was effectively held in trust – it was not absolute.  The court’s power, however, was limited; Lord Eldon, the Lord Chancellor, said,

This court has not the means of acting, except where it has property to act upon.  It is not, however, from any want of jurisdiction that it does not act, but from a want of means to exercise its jurisdiction; because the court cannot take upon itself the maintenance of all the children in the kingdom.

In 1839 the Custody of Infants Act followed a parliamentary campaign by the granddaughter of the playwright Richard Sheridan, Caroline Norton, who had been refused custody of her three sons and access to them.  The Act introduced the presumption that children, especially young children, should normally be given into the custody of their mothers.  This presumption is termed ‘the tender years doctrine’, and has its origin in animal husbandry; consider the view of judge Robert Noland from Georgia, USA,

I ain’t never seen a calf following a bull.  They always follow the cow.  So I always give custody to the mamas (Amneus, 1999).

For the first time a separated woman was allowed to petition a court for custody of her children under the age of 7 during their father’s lifetime and access to those under 16, provided she was of ‘good character’, i.e. innocent of adultery.  Caroline’s husband evaded the law by moving to Scotland and only relented after one of the couple’s sons died following a riding accident.  The tender years doctrine was based less on the best interests of the child, however, than on a new obligation to achieve gender equality.  Wardle and Nolan state that the best interests of the child rule had by this time become no more than a ‘façade’.  Danaya C. Wright agrees: though couched in the language of children’s rights the courts were really bending to women’s demands for equality, ‘despite a rhetoric of children’s interests that infused the legislative and judicial treatment of mothers’ claims, the difficulty of reconciling paternal and maternal rights prevented significant reform for many years’  (Wright, 2006).

The law gradually began to yield to the combined pressures of children’s welfare and women’s rights, eroding the vital link between custody and economic provision and identifying a child’s interests exclusively with those of its mother.  Very swiftly the ‘common sense’ position that a father was best placed to decide issues bearing on his children gave way to the ‘common sense’ position that a mother was.  The Matrimonial Causes Act 1857 revolutionised divorce by taking it out of the ecclesiastical courts and enabled the court to make custody orders until the child was 21, while the Matrimonial Causes Act 1878 extended this power to magistrates until the child was 10.  The Custody of Infants Act 1873 lifted the restriction on adultery and extended the tender years doctrine, allowing mothers to apply for the custody of their children under the age of 16, provided the father or guardian was permitted access.  The Guardianship of Infants Act 1886 ‘destroyed the concept of the family as a domestic kingdom ruled by the father’ (Bainham, 2005): it allowed a mother to become her child’s guardian on the death of the father, but only jointly with whomever he had appointed, and provided for the child’s welfare to be a consideration for the court in custody disputes when considering the mother’s application; thus a mother’s chance of custody became linked to establishing the father’s threat to the child’s welfare.  On this ground, and through giving women more opportunities to win custody after divorce, these laws began to grant mothers rights independent of the family, which began to fracture.  It is pertinent to recognise, however, that few parents were necessarily aware of the shifting legal rights of fathers and mothers – notwithstanding Caroline Norton’s pamphlets – and comparatively low levels of divorce meant they had little impact.

By the end of the nineteenth century the central pillar of family law was still the cohesion and autonomy of the patriarchal married family.  Judgements transferring guardianship from fathers were seldom enforced by the courts, compelling Parliament to legislate further in order to affirm the rights of children and mothers and to curb the judiciary’s automatic support for paternal rights; in 1893 Lord Esher said,

In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded (Regina v Gyngall, 1893).

The law in England continued to act to protect the inheritance of property, broadly following the lead of Roman law with regard to adoption.  In Rome adoption ensured a male heir and forged alliances between families in a manner not dissimilar to marriage.  The paterfamilias could both adopt a son and give one up if he had too many, usually the eldest; the adopted child would acquire his adoptive father’s name and social status.  In America, by contrast, adoption served a welfare purpose: to provide homes for neglected and abandoned children.  In the US adoption was about finding a family for a child; in the UK it was (and remains) about finding a child for a family.

Thus the evolution of the best interests standard moved from the UK to the US and shifted from private family disputes to public intervention and ‘welfare’ provision.  In the US family law developed on philanthropic lines, emphasising the benefit to the child of growing up in a stable, two-parent home; in the UK the law developed independently, influenced by Utilitarianism, and came to place the ‘public good’ above that of the individual.  The prevalent view was illustrated in 1840 by Jeremy Bentham,

The feebleness of infancy demands a continual protection.  Everything must be done for an imperfect being, which as yet does nothing for itself.  The complete development of its physical powers takes many years; that of its intellectual faculties is still slower.  At a certain age, it has already strength and passions, without experience enough to regulate them.  Too sensitive to present impulses, too negligent of the future, such a being must be kept under an authority more immediate than that of the laws (Bentham, 1840).

By the 1920s the divorce rate had significantly increased, partially triggered by the First World War.  The next character destined to play a major role on the family stage was Eleanor Rathbone, president of the National Union of Societies for Equal Citizenship (NUSEC) and later Member of Parliament.  She had confirmed that despite their huge legal advantage men generally didn’t exploit it after divorce,

If comparatively few husbands abuse their power… it is because the sense of justice of the ordinary man refuses to let him take seriously the monstrous legal fiction that a man has a primary right to the sole control of the children whom a woman has borne with great suffering and at the risk of her life and to whose care nature and custom require her to devote herself as the chief work of the best years of her life (Rathbone, 1924).

At a time when mothers’ and fathers’ roles were clearly differentiated and there was minimal exploitation by fathers of their still privileged status, insistence on ‘women’s equality’ was redundant.  The motive to transform the status quo was not a pressing need, occasioned, for example, by thousands of children losing all contact with their mothers.  The motive was not even real equality: the feminists’ aim was to transfer the authority over their children previously enjoyed by men onto women; the interests of the child became a subterfuge to transfer power to mothers.  A movement established to right injustice was being manipulated to achieve an ideological end.



Works Cited

The King versus Penelope Smith, 2 Str. 982 (1763).

De Manneville v De Manneville, [1804] 10 Ves 54 (1804).

The King against De Manneville, [1804] 5 East 219 (1804).

Ex Parte Skinner (King’s Bench 1824).

Ball v Ball, [1827] 2 Sim. 35 (1827).

Wellesley v Duke of Beaufort, [1827] 2 Russ. Rep 1 (1827).

Rex v Greenhill, 111 Eng. Rep. 922 (King’s Bench 1839).

Re Agar-Ellis, [1883] 24 Ch. D 317 (1883).

Regina v Gyngall, [1893] 2 QB 232 at 239 (1893).

Re R (A Minor) (wardship: medical treatment), [1991] 4 All ER 177 at 186 (1991).

Amneus, D. (1999, September 20). The case for father custody. Alhambra, CA: Primrose Press.

Bainham, A. (2005). Children: the modern law, 3rd Edn. Bristol: Jordan.

Bentham, J. (1840). Theory of Legislation, Volume I. Weeks, Jordan & Co.

Blackstone, S. W. (1765). Commentaries on the Laws of England.

Dickens, C. (1838). Oliver Twist. London.

Rathbone, E. (1924). The Disinherited Family.

Wardle, L. D., & Nolan, C. L. (2002). Fundamental principles of family law.

Wright, D. C. (2006). De Manneville v De Manneville: Rethinking the birth of custody law under patriarchy. Literary and History Review.