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Buti, Antonio --- "The Early History of the Law of Guardianship of Children: From Rome to the Tenures Abolition Act 1660" [2003] UWSLawRw 5; (2003) 7(1) University of Western Sydney Law Review 92

ACT 1660

Antonio Buti[*]


Amendments in 1995 to the Family Law Act 1975 (Cth) have done away with notions of guardianship and custody and replaced them with ‘a single, all-embracing notion of parental responsibility’ that includes the bundle of rights and duties associated with raising a child.’[1] However, in reality, it is the law of guardianship that informs the content of the duties associated with bringing up a child.

This article is concerned with the early history of law of guardianship for children. This article takes as its starting point, the Roman law of guardianship. While in many ways the Roman law of guardianship differs from the modern common law of guardianship, it has been influential in the development of the later. This article takes as its concluding point the Tenures Abolition Act 1660, which provided a revolution in the law of guardianship.[2]

The Roman law of guardianship

The 449 BC Roman Twelve Tables, the first expressed legislation on Roman private law,[3] made reference to guardianship by providing that a family or paternal relative should protect a person and his goods if that person was unable to take care of himself.[4] Children came within this guardianship protection or control, his potestas or power. In contrast to early English medieval feudal law, where guardianship applied only to infants of property, the potestas concept in Roman times applied to all minors sui juris, whether they had property or not.[5]

When a father, who had patria potestas or absolute control over his children’s person, their property and their labour,[6] died leaving minor children, Roman law provided the children with two types of guardians; the tutor (tutela) and the curator. A tutor was appointed to a child in pupillari aetate, that is below puberty[7] after which a curator was appointed to represent the child until the age of 25.[8] The tutor was appointed to protect both the child’s person and property,[9] while the curator was responsible only for the child’s property.

Unlike English guardians of later centuries, guardianship in Rome was a public office and was compulsory for those qualified and without legal excuse. Only a free person with the rights of citizenship was qualified to become a tutor or curator.[10] Like current law, certain prescribed ‘classes’ or ‘types’ of people were prohibited from being appointed as tutors. Those prohibited included slaves, intermediate citizens and hostile aliens. A female could only be appointed tutor if the father died without appointing a tutor, she promised not to remarry and a magistrate agreed to appoint her.[11] In relation to appointment of tutors, there were three different methods of appointment, depending on what type of tutor was being appointed - testamentaria, legitima and dativa. The tutor testamentaria was the guardian named in a father’s will and unless he was legally disqualified, he took precedence over the others. If no tutor testamentaria had been named, the law looked to the tutor legitima or next of kin. Originally, appointment of this tutor was limited to the father’s relations but was later extended by the Emperor Justinian to include cognates.[12] The third type of tutor, the tutor dativa, was appointed by the Magistrate only in the absence of the other two.[13] By contrast, the curator’s appointment rested with the minor.[14] Only when the minor had no nominee of his own did the court find and appoint a curator.[15] It appears it was not necessary for a minor between 14 and 25 years to have a curator, unless the minor wished to contract or engage in a suit as plaintiff or defendant.[16]

A Roman tutor was not entitled to custody of the minor as this usually belonged to the mother but he was required to discharge three main duties: maintain the child;[17] represent the child in litigation;[18] and administer the child’s property.[19] In discharging these duties he was not required to use his own private resources. If the tutor did incur personal expenses in carrying out his guardianship duties, he was entitled to reimbursement from the minor’s property. The curator’s duties were restricted to properly administering the child’s property. Legal historian R H Helmholz writes that the Act books, which record cases from the English church courts during the middle ages, include references to the Roman guardians’ duties of caring for the physical and educational needs of the infants under their charge.[20] Helmholz adds that most court records did not specify the duties required of a guardian regarding the child’s person. This lack of detail in recording may have meant that on some occasions, a child’s physical needs were left up to the tutor to determine.[21]

Emperor Antoninus Philosophus delegated guardianship jurisdiction to the Praetor at Rome and the Praeses in the provinces. The Praetor and Praeses exercise a general control over all guardians. This included a ‘superintending power over the persons and property of minors.’[22] They also gave directions concerning the maintenance and education of minors, including modifying the testamentary directions of the father if they thought to do so was in the interests of the minor.[23] Their jurisdiction was not unlike the jurisdiction later exercised in England by the Court of Chancery, leading Spence to claim that it is in fact the model upon which the Court of Chancery was framed.[24] Similarly, the Hon Justice Story in his Commentaries on Equity Jurisprudence claims, ‘[i]n many respects, indeed, the Court of Chancery, in the exercise of its authority over infants, implicitly follows the very dictates of the Roman code.’[25]

A tutor was also required to administer the minor’s property and was under a legal duty to act in the minor's interests. If during the course of the tutela the tutor was guilty of misconduct toward either the minor or his property, he could be removed from his position by an action called an accusatio suspecti, which is also mentioned in the Twelve Tables. Even suspicion of wrongdoing could lead to removal.[26] Roman guardianship was purely an office of trust, having to administer the minor’s assets for the benefit of the minor.[27] A tutor was required to give a general account or actio tutelae directa of the minor’s property at the end of the tutela, at which time he would be held liable for any loss sustained by the minor’s estate due to his fraudulent or negligent acts. An exemption clause in a will would not protect a tutor from liability for a breach of trust amounting to fraud. His heir was liable to provide reparation, such as restoring property to the condition it was prior to the breach.[28]

English law may have looked to Rome when, in later centuries, it too transformed what in feudal times had been an opportunity to profit, into a trust by requiring the guardian to account for his management of a ward’s property at the end of his or her minority.[29] However, Roman law went further again in that a tutor found guilty of misconduct was also subject to a type of civil penalty called an infamia, which involved a loss of certain political and civil rights. Breach of guardianship under Roman law therefore had both private and public consequences. It should also be added that a curator who did not discharge the office in a proper manner could be proceeded against and removed; such a removal carrying great disgrace.[30]

Although the Roman guardian was subjected to a strict code of conduct and compliance with prescribed duties, the tutors and curators had great power. The Roman guardian did not act for his charge but supplied the aucutoritas to fill up the deficiency in the minor’s own legal authority. Together they formed one complete person with the legal capacity to act.[31] Without the tutor or curator’s aucutoritas or ‘added authority’ the minor’s acts were not legally binding.

Although it may be difficult to accurately pinpoint the degree to which Roman law of guardianship influenced the common law, it is clear that there are similarities between the two systems. Examples include the rendering of accounts by the guardian at the end of the minority to reflect the trust relationship between the parties and the general supervisory jurisdiction of the Court of Chancery modelled on that of the Roman Praetor and Praeses. Helmholz also claims that the influence of Rome is particularly evident in the principles developed by the English church courts when exercising their significant guardianship jurisdiction. While not strictly applying Roman law, he claims they applied a simplified form, ‘having an eye to the habits and the needs of contemporary practice while dispensing with the purely formal, archaic elements of the Roman law of guardianship’.[32] Whether Helmholz’s estimate of the influence of Rome on the common law through ecclesiastical practices in its guardianship jurisdiction is sustainable, to a greater or lesser extent, the common law of guardianship does bear the imprint of Rome. In many respects the equity jurisprudence of England borrowed from the doctrines of Roman law[33] and the rights, duties and liabilities attached to the Roman guardians are similar to those of guardians in the common law system.[34]

Pre medieval law

Under Anglo-Saxon customary law fathers did not have absolute power over their children in the manner of Roman fathers, but they did enjoy many of the same rights through the concept of ‘mund’. A ‘mund’ was a state of protection out of which arose a number of rights and duties.[35] However, under customary law the mother acquired rights and duties of personal control, education and maintenance of the child following the death of the father, while vesting control over the child’s property in its paternal relatives.[36] It also granted her limited rights to custody of her children in the event of a separation.[37] Anglo-Saxon customary law lacks a concept of guardianship allowing a third person or substitute to take over the guardianship rights and duties vested in the father.[38] These rights and duties involved personal control, maintenance and education. Custom dictated that on the death of the father the mother cared for the child’s person and a paternal kin would assume responsibility for the child’s property.[39] With the arrival of the Normans in 1066, these maternal rights to guardianship survived by custom in the manorial courts and in the form of socage guardianship in the royal courts.[40]

The Norman invaders brought with them the customary laws of Normandy which, when combined with certain pre-existing Saxon customary laws, developed into a new body of law based upon local conditions.[41] The division between Anglo-Saxon law and the law under the Normans is most evident in the area of land ownership. When William conquered England, he destroyed the ruling Saxon class, dispossessed them of their land and parcelled it out among the barons who had allied themselves to him. These barons made oaths of personal loyalty or fealty to him and agreed to hold the land as his vassals promising future military service in exchange for his protection and the right to derive income from the land by carving out of it tenures to lesser lords and commoners. Thus in Norman England, all the land remained the King’s by right and the barons held their land of him as their supreme lord by knight's service. This system of land titles or holdings gave rise to two different types of tenure, military tenures and socage tenure. The former was tenure in exchange for knight services or grand serjeantry and was non-fiduciary in nature. The latter was a type of tenure that was fiduciary in nature and, although difficult to define, bore some resemblance to the old customary guardianship of Anglo-Saxon times.

Guardianship under medieval feudal law

According to Sir Edward Coke at common law during medieval England there were four types of guardianship; guardian in chivalry, guardian by nature, guardian in socage and guardian in nurture.[42] Only guardian by nurture was unrelated to child property ownership and in feudal times the most important was guardian in chivalry. There were also several more obscure forms of guardianship in use in historical England: guardianship by election; guardianship by custom; and guardian ad litem.

Guardianship in chivalry

Guardianship in chivalry arose when a tenant of land held under knight service died leaving an infant heir. The feudal overlord automatically assumed guardianship of both the person and property of the heir. It was purely a creation of the royal courts and lasted until a male heir was 21 and a female heir was 16, or 14 if she married.[43] It was the most important guardianship in feudal times.[44]

Guardianship in chivalry did not concern itself with the welfare of vulnerable heirs. Rather, it treated them as an adjunct to their land, seeing in them not a child to be protected, but a valuable proprietary right to be exploited. A guardian in chivalry of the ward’s estate was entitled to rent and profits from the estate and was under no liability to account for his use of the land. His sole duties to the heir were to allow him a bare maintenance[45] and to refrain from committing waste of his estate.[46] However, when a guardian also held guardianship of the person of the heir, he had the right to determine the heir’s marriage. This was a lucrative right in the hands of the guardian who frequently auctioned off the ward’s marriage to the highest bidder.

The notion of guardianship in chivalry is not dissimilar to the paterfamilias of Roman law. In both doctrines, the guardian or paterfamilias had near absolute power over both the persons and the property of the minors under their control, yet owed them few duties in return. However, as mentioned above, the Roman tutor did have duties towards the minor in relation to maintenance, education, litigation and the child’s property.

Guardianship in chivalry reached its zenith during the reign of Henry VIII who regarded wardship as a largely untapped source of Crown revenue. In 1540 he passed a statute establishing the Court of Wards,[47] which as a result of the 1541 statute of 33 Hen VIII c22 became the Court of Wards and Liveries. The court’s special mandate was to enforce the Crown’s revived feudal prerogatives.[48] The Court was abolished in 1646 in the first Parliament of the Protectorate. In 1660 Parliament passed a bill confirming the 1646 Act and making it retrospective to 1645.[49] The Tenures Abolition Act 1660 put an end to military tenures and so ended the reign of guardians in chivalry.

Guardianship in socage

When a deceased tenant held no land by military tenure, a socage guardian was appointed to a child under the age of 14. While socage guardianship, like guardianship in chivalry, arose from tenure, unlike the latter it was fiduciary in nature[50] and was to be undertaken for the benefit of the ward, not the profit of the guardian. Under the Statute of Marlborough 1267, c 17, the guardian in socage had to hold an heir’s land ‘to the use of the said heir.’ In fact, its obligations were so daunting, that a scholar undertaking a study of pleas of wardship in the thirteenth and fourteenth centuries could find only one case involving competing claims to socage guardianship.[51] This common law guardianship was also a clear departure from Roman law in that it allowed mothers to be appointed guardians of their children, a practice that had its roots in Anglo-Saxon customary law and was based upon the rationale that stability was best achieved when community and family stayed together.[52]

Common law dictated that guardianship in socage went to the child’s nearest relative who could not inherit, which was usually the mother. If the mother could inherit, guardianship was then placed with a paternal relative who could not, thus avoiding potential conflicts between the personal interests of the guardian and the child. This was again a departure from Rome where an heir was placed under the strict control of tutors and curators who were next in succession to the heir.[53] In each of the royal courts, the manor courts and the ecclesiastical courts, when military tenure was not involved, the mother was usually the guardian of choice unless she could not ensure the productivity of the estate.[54] If this was the case, or if the mother was deceased or able to inherit, the court would usually consult with the community and place the child with either the next of kin, or if this was not possible, a willing neighbour. If none of these options were available, guardianship would often be given to a member of the clergy.[55]

Courts exercised a supervisory role over guardians, and commonly required them to guarantee their performance through personal pledges.[56] The court warned guardians about disparaging their children by arranging unsuitable marriages and abusing their guardianship by allowing rents to fall into arrears or lands to lie waste or dwellings in a state of disrepair.[57]

In addition, the guardian was under a duty to instruct the ward in the art of agriculture and to ensure the safety of both his person and land.[58] This built on the notion of a fiduciary relation and trusteeship.[59] The Statute of Marlborough 1267, c17, which declared it to be so, put this trust categorisation of the socage guardianship beyond doubt. This development of the socage guardianship into a trusteeship, claims Holdsworth, ‘became the model to which all forms of guardianship ultimately conformed.’[60]

Unlike guardianship in chivalry, socage guardianship was strictly personal and could not be disposed of by alienation, succession or devise.[61] When the ward reached the age of 14, he could enter upon the estate and demand that the guardian deliver up the estate and account to him for all the rents and profits received during the wardship,[62] including the price of any marriage entered into before his majority.[63] In this, the socage guardian was under a duty similar to that of the curator in Roman law. However, a breach of the duty to preserve a ward’s estate in medieval English law did not attract the same kind of censure as it did in Roman law, where as we have seen, guardians often suffered public and well as private consequences for breach.

Guardianship by nature

The third type of common law guardianship found in historical English law was that of guardianship by nature. This guardianship was originally an incident of tenure in chivalry and extended only to the person of a child under 21 years.[64] At common law, the father was the natural guardian of his child[65] and his right, except as limited by statute or by the courts was absolute,[66] even against the mother, despite the child being an infant at her breast.[67] Coke believes that guardianship by nature at common law extended only to the father in respect of the heir apparent[68] and was the only type of guardianship, which took precedence over guardianship in chivalry.[69] While the father was alive he retained custody of the heir despite holding his tenure by knight’s service, but upon his death, the lord took precedence over the mother or other relative.[70]

Guardianship by nature also existed in equity, which deemed both parents the natural guardians of all of their children, both legitimate and illegitimate.[71] However, while the father was alive his right took precedence over the mother’s right if the father died before the child reached the age of majority, however, the mother became the natural guardian.[72]

There is uncertainty as to whether guardianship by nature formally disappeared with the abolition of military tenures in 1660[73] or whether it survived only to be subsumed by the natural law concepts of parental duties and rights arising out of the biological tie.[74] This term of nature was liable to create confusion between the parental duties of support, maintenance and education deriving from the ‘natural’ biological tie between parents and biological child and the more legalistic guardianship by nature of the father to his heir.[75]

Guardianship by nurture

The fourth of the common law forms of guardianship is perhaps the oldest English form of guardianship.[76] It occurred only when there was no other guardian and belonged to both parents, one taking over when the other died. If both died, the guardianship ceased entirely.[77] Only natural parents could be guardians by nurture and their guardianship extended to all of their children, not simply the heir. Guardianship by nurture involved only the care of the child’s person and education[78] not being concerned with the child’s property. It ceased when the child reached 14 years of age.[79] Of all the common law guardianships, it is guardianship by nurture that most resembles modern guardianships of children.[80]

Other guardianships

There were several more obscure forms of guardianship in use in historical England. The first of these was guardianship by election of the infant. Infant tenants who had no socage lands or whose socage interests were purely equitable and who had no testamentary guardians were permitted to elect their own guardians at any time during their minority after the age of 7. 81 Infant tenants of socage lands who had no testamentary guardians were also permitted to choose their own guardians but only for the rest of their minority upon their socage guardianship expiring at age 14.[82] The infant made his or her election before the judges on assize[83] or by deed[84] or even parol,[85] although the appointment was not binding on the infant and the Court of Chancery was empowered to set the appointment aside and appoint another.[86] It was, however, the usual practice of the Court of Chancery to allow an infant to choose his or her own guardian, provided the deceased father had not appointed a testamentary guardian.[87]

Three types of customary guardianship also existed under the common law. The first was guardianship by the custom of the City of London,[88] which gave guardianship of orphans to the Mayor and Aldermen of that city exercising jurisdiction under their Court of Orphans.[89] The court was permitted to exercise the guardianship itself, or commit it to any other person.[90] It included both guardianship of the person and the estate.[91] In Kent too there existed a custom where guardianship of an heir under the age of 15 was committed to the heir’s next of kin who could not inherit.[92] This took place in a court of justice at the instigation of the lord.[93] This guardianship resembled socage guardianship except that it extended to the age of 15 and included the personal estate of the heir, which was most likely not so for socage guardianship.[94] The other difference between this customary guardianship and that of socage is that the former required that the lord make up any deficiency in the accounts rendered by the guardian.[95] The third type of customary guardianship granted the lords of certain manors the right to appoint a guardian to infants of deceased tenants by virtue of some special custom peculiar to that particular manor.[96]

However, the custom had to be proved by the lord,[97] failing which the next of kin who could not inherit took guardianship. This was usually the same person who was entitled to guardianship in socage.[98] If both a special custom and socage guardianship applied, the socage guardian had custody of the heir’s person, while the lord had the right to have someone perform the services in respect of the land.[99] However, guardianship by special custom took precedence over a father’s appointment of a testamentary guardian under the Tenures Abolition Act 1660.

Guardianship by election of an infant and the customary guardianship continue to exist in England, but have fallen into disuse.[100] The powers of a guardian elected by an infant never seem to have been defined.

Medieval courts had the power to appoint a guardian ad litem, that is a guardian appointed for the purpose of acting legally on behalf of an infant without a guardian, if the infant wished to sue or is being sued and needs surrogate representation in court. All courts still retain the power to appoint guardianship ad litem.[101] The reason for the appointment is that an infant has no capacity and cannot appoint an attorney and so would be without assistance if the court were not empowered to provide him with a guardian ad litem. The power and duties of such a guardian are limited to the conduct or defence of the suit.[102]

Tenures Abolition Act 1660

1660 marked the year of the enactment by the English Parliament of the Tenures Abolition Act 1660. As previously stated, this statute provided a revolution in the law of guardianship.[103] The Act converted military tenures to socage tenures and modified the medieval guardianships. It abolished the property-based guardianship in chivalry and the Court of Wards and Liveries jurisdiction over the medieval guardianships of chivalry, nature, nurture and socage. More importantly, s 8 of the 1660 Act allowed the father of a child under 21 and not married at the time of his death to appoint by will or deed a guardian for his child in the event of the father’s death. The guardianship of a male child continued to the age of 21 even if the child subsequently married.[104] However, whether this also applied to the female child is unclear.[105] This power of appointment was exclusive to the father; it did not extend to the mother. Any appointment made by a mother was void,[106] even if made for illegitimate children,[107] although the mother’s wishes could be taken into account by the Court of Chancery in exercising its guardianship jurisdiction.[108]

The Tenures Abolition Act 1660 gave testamentary guardians precedence over all other guardians[109] (with the rare exception of special customary guardians) and granted them the same rights and duties regarding the ward’s person and estate as those of socage guardians.[110] Even though subsequent statutes altered the relative status of father, mother and child, the 1660 Act has endured over time.

The enduring effect of ss 8 and 9 of the Tenures Abolition Act 1660 reinforces the significance of the 1660 Act in the history of guardianship law. Under s 8, the father of a child may by executing a valid will, dispose of the custody and the tuition of any of his children under 21 and until 21. This disposition may be made to any person ‘other than Popish recusants’ and the disponee ‘may maintain an action of ravishment of ward or trespass against any person or person which shall wrongfully take away or detain such child or children for the recovery of such child or children; and shall and may recover damages for the same in the said action for the use and benefit of such child or children.’ Pursuant to s 9 the disponee may take into his possession all real and personal property of the child or children to be used for the child or children until they reach 21 years (or a lesser time if so devised) and ‘may bring such action or actions in relation thereto as by law a guardian in common socage might do.’

At one level, the Tenures Abolition Act 1660 made the father all-powerful, returning guardianship back to the position of Roman times. The Act increased the father’s power to dispose of his children’s custody upon his death.[111] Even though some suggest this removed guardianship decisions from the judiciary and placed them back in the hands of the fathers,[112] legal academic Sarah Abramowicz argues otherwise.[113] Abramowicz argues that the 1660 Act and not the Infants’ Custody Act 1839 is the origin of the Court of Chancery’s incursion into the so-called ‘empire of the father.’ Abramowicz writes that ‘the Court of Chancery employed an analogy between testamentary guardians and fathers to extend its jurisdiction to include the supervision of fathers themselves.’[114]

Abramowicz’s position is given credence by the 1721 case of Duke of Beaufort v Berty,[115] where Lord Macclesfield LC accepted that a testamentary guardian was subject to the jurisdiction of the Court of Chancery.[116] There was a developing or evolving jurisdiction in the Court of Chancery that allowed the Lord Chancellor, representing the Crown, to intervene in matters of guardianship and protection of children.[117] It should be noted that Abramowicz concerned herself solely with jurisdiction in relation to legitimate children and the 1660 Act excluded the possibility of appointing a testamentary guardian for illegitimate children. However, the mother of an illegitimate child could still request and obtain from the Court of Chancery an order for the appointment of a testamentary guardian. Unlike the Common Law Courts, where the doctrine that an illegitimate child was filius nullius prevailed, illegitimate children were always subject to the jurisdiction of the Court of Chancery and the mother’s status reign supreme over the fathers.[118] This is confirmed by a number of twentieth century English and Australian cases[119] and, as stated by Street CJ in the 1981 New South Wales’ case of Youngman v Lawson:

It appears to be established by the authorities that, in the case of an illegitimate child, all of the rights that are customarily incidents of technical legal guardianship in the case of a legitimate child, inhere in the mother. These rights are shared by the putative father, but, the child being illegitimate, the mother is usually the only parent known or on the scene and hence usually has been recognized as having, in her sole capacity, the status to enforce such rights as customarily inhere in guardianship as, for example, the right to bring habeas corpus in her own name in aid of the obtaining of custody or determination of religion of the child.[120]

Returning to Abramowicz’s arguments, the core of her thesis is that ‘[t]he substantive basis for Chancery’s authority over testamentary guardianships was that guardianship was a trust, and as such subject to the Court of Chancery’s power to oversee all trusts.’[121] However writers before Abramowicz dispute the trust analogy[122] and there is relatively recent Australian authority that refutes that idea that a guardianship is a trust. [123] Even though guardianship is not an office of trust, a guardian stands in a fiduciary relationship with the child being ‘guarded’.[124] Thus the guardian is always under a strict loyalty to the child to always act in their best interest.

Connection to modern times

This article commenced by saying that even though the term guardianship has now been replaced in the Family Law Act 1975 (Cth) by the term ‘parental responsibility’, in effect it is the law of guardianship that informs the content of the duties associated with bringing up a child. Although this article is concerned with exploring the early history of guardianship law, I do offer here some brief comments on the connection of this early history to contemporary ‘parental responsibility’.

In contrast to early English medieval feudal law, where guardianship applied only to infants of property, the potestas concept in Roman times applied to all minors sui juris, whether they had property or not.[125] This is also the case in modern times, where a guardian has responsibility for a child whether they have property or not. In modern times, the child’s best interest is the focus of guardianship duties.

Under early medieval law, the child was seen more as an economic asset and thus the focus centred on the child’s property. However, this began to change with the increasing intervention of the Court of Chancery in guardianship matters after the enactment of the Tenures Abolition Act 1660. Here the court came to increasingly look at the best interests of the child when dealing with guardianship and custody matters. It was not until the eighteenth century that the courts more regularly intervened to protect the best interests of the child, even if they overrode the father's[126] or mother’s wishes.[127]

The nineteenth and twentieth centuries witnessed a continuation of the developments that earmarked the eighteenth century as a century of change in relation to guardianship law. Even though the courts of the eighteenth and nineteenth centuries were in their decisions preferring the interests of the child to other competing interests and also bringing the rights of the father and mother on a more even keel, this did not always happen.[128] As Lord MacDermott remarked in J v C in 1970: ‘The authorities are not consistent and the way along which they have moved towards a broad discretion, under the impact of changing social conditions and the weight of opinion, has many twists and turns.’[129]

The modern notion of ‘parental responsibility’ is based on the law of guardianship. The connection between contemporary guardianship and the early Roman and English law is that the guardian has always had a duty to look after the child. It is this early law that developed the duties of maintaining and educating the child and protecting the child from harm. The main difference is that in earlier times, the interest of the child often had to compete with the authority of the ‘father’ and the economic value of the child and its property. But now, there is no doubt that the best interest of the child has paramountcy.

This article has sought to present and examine the early development of the law of guardianship as it relates to children. In some respects, this early law has no semblance to the modern common law. In other aspects however, there are similarities and in many respects this early history has had a significant impact on the development of the common law of guardianship.

[*] BPE (Hons), Dip Ed, MIR (W.Aust.); LLB (Hons) (ANU); DPhil (Oxon); Senior Lecturer, Associate Dean (Research), Louis Johnson Memorial Trust Fellow, School of Law Murdoch University; Barrister and Solicitor of Supreme Court of Western Australia and High Court of Australia. I would like to thank Debra Osborne for her invaluable research assistance in the preparation of this article. All opinions and errors are, of course, my own.

[1] Refer to A Dickey Family Law (3rd ed Law Book Company 1997) 309, 330-332.

[2] S Abramowicz ‘English Child Custody, 1660-1839: The Origin of Judicial Intervention in Paternal Custody’ (1999) 99 Columbia L Rev 1344, 1370.

[3] WW Buckland A Textbook of Roman Law from Augustus to Justinian (2nd ed CUP Cambridge 1933) 1-2.

[4] F Johns and V Joiner Bowers ‘Guardianship Folly: The Misgovernment of Parens Patriae and the Forecast of its Crumbling Linkage to Unprotected Older Americans in the Twenty-First Century – A March of Folly? Or Just a Mask of Virtual Reality?’ (1997) 27 Stetson L Rev 1, 10.

[5] R Storry Deans The Law of Parent and Child, Guardian and Ward (Reeves and Turner London 1895) 49.

[6] Although a daughter ceased to be under the father's potestas if upon her marriage she came under her husband's manus, a corresponding power of husband over wife.

[7] Institutes in JB Moyle (tr) The Institutes of Justinian (4th ed Clarendon Press Oxford 1906) 27.

[8] Institutes in Ibid, 28.

[9] Institutes in Ibid, 22-23.

[10] Institutes in Ibid, 30-33.

[11] Above n 3, 150-151; above n 4, 12.

[12] See generally, R H Helmholz ‘The Roman Law of Guardianship in England, 1300-1600’ (1978) 52 Tulane L Rev 223, 235.

[13] Institutes 1.20 pr in above n 7, 25-25.

[14] Institutes 1.23 pr in Ibid, 28.

[15] Above n 12, 241.

[16] G Spence The Equitable Jurisdiction of The Court of Chancery (Lea & Blanchard Philadelphia 1846) Vol I 610.

[17] Digest, 27.2.3 in CH Monro (tr) The Digest of Justinian (CUP Cambridge 1904) Vol 1.

[18] Digest, 26.7.30 in Ibid.

[19] Digest 26.7 in Ibid.

[20] Above n 12, 245.

[21] Ibid, 245-246.

[22] Above n 16, 609.

[23] Ibid, above n 610.

[24] Ibid, 608.

[25] Hon Mr Justice Story Commentaries on Equity Jurisprudence (11th ed Stevens and Haynes London 1873) 935.

[26] Above n 5, 49.

[27] Above n 16, 608.

[28] Digest in above n 17.

[29] Prov of Westminster 1259, c 17; Statute of Marlborough 1267, c 17.

[30] Above n 5, 49.

[31] George Long ‘Curators’ in William Smith (ed) A Dictionary of Greek and Roman Antiquities (John Murray London 1875) 374-376.

[32] Above n 12, 255.

[33] Above n 25, 934.

[34] Above n 5, 49-50.

[35] DC Wright ‘De Manneville v De Manneville: Rethinking the Birth of Custody Law under Patriarchy’ (1999) 17 Law and History Rev 247, 263.

[36] W Holdsworth History of English Law (4th ed (6th Impression) Metheun Sweet & Maxwell London 1982) Vol II 99.

[37] S Berns 'Women in English Legal History: Subject (almost), Object (irrevocably), Person (not quite)' (1993) 12 U of Toronto L Rev 26, 28-29.

[38] Above n 35, 264.

[39] Ibid.

[40] Ibid, 252.

[41] Above n 36, 166, 168.

[42] F Hargrave and C Butler (eds) E Coke The First Part of the Institutes of the Laws of England: A Commentary upon Littleton (15th ed W Clarke London 1817) 88b. See also C Viner General Abridgement of Law and Equity (GGJ & J Robinson London 1793) Vol 14 160-172.

[43] J Seymour ‘Parens Patriae and Wardship Powers: Their Nature and Origin’ (1994) 14 OJLS 159, 163.

[44] Above n 5, 50.

[45] Above n 5, 51.

[46] Above n 43, 163.

[47] (1540) 32 Hen VIII c46.

[48] Above n 43, 164.

[49] Above n 35, 270.

[50] The fiduciary concept is a later characterisation.

[51] S S Walker ‘Wrongdoing and Compensation: The Pleas of Wardship in Thirteenth and Fourteenth Century England’ (1988) 9 J of Legal History 267, 275.

[52] Above n 35, 275. Also see E Clark ‘The Custody of Children in English Manor Courts’ (1985) 3 Law and History Rev 333, 343.

[53] Above n 5, 54.

[54] However, even if a mother lost guardianship of the estate of her child, she rarely lost physical custody.

[55] E Clark, above n 52, 337-338, 340.

[56] Ibid, 338.

[57] Above n 16, 610-611.

[58] F Hargrave and C Butler, above n 42, 87b, 88a, 89, 123.

[59] Above n 43, 165.

[60] W Holdsworth History of English Law (4th ed (3rd reprint) Metheun Sweet & Maxwell London 1983) Vol III 66.

[61] Above n 5, 54.

[62] Statute of Marlborough 1267, c 17.

[63] Above n 5, 55.

[64] WP Eversley The Law of the Domestic Relations (3rd ed Stevens and Haynes London 1906) 610, fn 2.

[65] F Hargrave and C Butler, above n 42, 84 a.

[66] Where the father or mother held guardianship by both nature and in socage, the socage guardianship (as to the custody of the child) prevailed until the child turned 14 after which the parent’s natural guardianship took over until the child is 21. Ibid, 84.

[67] Wellesley v Duke of Beaufort [1831] EngR 809; (1831) 2 Russ & M 639, 39 ER 538.

[68] F Hargrave and C Butler, above n 42, 88.

[69] Above n 5, 53-54.

[70] Ratclif’s Case [1592] EngR 3; (1592) 3 Co Rep 38b, 76 ER 713.

[71] F Hargrave and C Butler, above n 42, n 12.

[72] Ibid.

[73] Above n 64, 610, fn 2.

[74] Above n 35, 271.

[75] F Hargrave and C Butler (1817), above n 42, 88 b; W Blackstone Commentaries on the Laws of England (Clarendon Press Oxford 1765-1769) Vol 1 449 (Special edition LB Adams Jr The Legal Classics Library Birmingham Alabama 1983); DC Wright (1999) 247, fn 79.

[76] Above n 5, 54.

[77] Above n 35, 272.

[78] F Hargrave and C Butler, above n 42, 88 a.

[79] C Viner, above n 42, 171.

[80] Above n 35, 272.

[81] F Hargrave and C Butler, above n 42, 87 b, 88 a; G W Knowles Simpson on the Law of Infants (4th ed Sweet and Maxwell London 1926) 150.

[82] F Hargrave and C Butler, above n 42, 78 b; Mendes v Mendes [1747] EngR 62; (1747-1748) 1 Ves Sen 89, 27 ER 910.

[83] F Hargrave and C Butler, above n 42, 87 b.

[84] Ibid, 88 b, fn 15; Pen v Lord Baltimore (1745) Ridg t H 332[1733] EngR 77; , 27 ER 847.

[85] F Hargrave and C Butler, above n 42, 88 b, fn 15; Pen v Lord Baltimore, ibid.

[86] Curtis v Rippon [1819] EngR 754; (1819) 4 Madd 462, 56 ER 775.

[87] Above n 5, 55.

[88] Above n 42, 88 b. Note Coke says that ‘other places’ also followed this custom.

[89] LI Stranger-Jones Eversley’s Law of Domestic Relations (6th ed Sweet and Maxwell London 1951) 441. See generally E Clark ‘City Orphans and Custody Laws in Medieval England’ (1990) 34 American J of Legal History 168.

[90] Wilkinson v Bolton Miles [1793] EngR 1127; (1804) 1 Sid 250, 82 ER 1087.

[91] Above n 64, 615.

[92] G W Knowles, above n 81, 162.

[93] Above n 64, 615-16.

[94] Above n 5, 55.

[95] Above n 64, 616.

[96] G W Knowles (1926), above n 81, 162. See generally, E Clark, above n 52.

[97] Drury v Fitch [1682] EngR 149; (1682) Hutt 16, 123 ER 1068.

[98] Above n 64, 616.

[99] Ibid.

[100] G W Knowles, above n 81, 150; LI Stranger-Jones, above n 81, 441.

[101] G W Knowles, above n 81, 149.

[102] F Hargrave and C Butler, above n 42, 88 b, n 16, 135 b, n 1.

[103] Above n 2, 1344, 1370.

[104] Eyre v Countess of Shaftesbury [1722] EngR 25; (1722) 2 P Wms 103, 24 ER 659.

[105] Compare Mendes v Mendes, above n 82; Roach v Garvan [1748] EngR 416; (1748) 1 Ves Sen 157, 27 ER 954.

[106] Villareal v Mellish (1737) 2 Sw 533[1737] EngR 118; , 36 ER 719.

[107] Ord v Blackett (1724) 9 Mod 116, 88 ER 351.

[108] G W Knowles, above n 81, 151.

[109] In re Louisa Morris (1862) 2 Sw & Tr 360, 164 ER 1035.

[110] Above n 5, 61.

[111] Above n 35, 273.

[112] M Grossberg Governing the Hearth (Studies in Legal History University of North Carolina Press Chapel Hill 1985); M Mason From Father’s Property to Children’s Rights (Columbia University Press New York 1994).

[113] Above n 2.

[114] Ibid, 1345.

[115] [1721] EngR 306; (1721) 1 P Wms 703, 24 ER 579.

[116] See also Wellesley v Duke of Beaufort [1827] EngR 268; (1827) 2 Russ 1, 21; [1827] EngR 268; 38 ER 236, 243.

[117] O M Stone ‘Jurisdictions Over the Custody and Upbringing of Children in Canada and their Judicial Exercise’ (1979) 2 Canadian J Family L 364, 382.

[118] R v Nash, Re Carey (1883) 10 QBD 453; Barnardo v McHugh [1891] AC 388.

[119] For example Re Aster (An Infant) [1955] 1 WLR 465, 468-469; Ex parte Vorhauer: Re Steep (1968) 88 WN (Pt 1) (NSW) 135; Re an Infant, K, and the adoption of Children Act [1973] 1 NSWLR 311.

[120] [1981] 1 NSWLR 439, 443.

[121] Above n 2, 1371.

[122] F Hargrave and C Butler, above n 42, 88b, n 16; above n 25, 920.

[123] Clay v Clay [2001] HCA 9; (2001) 202 CLR 410.

[124] Ibid; Plowright v Lambert (1885) 52 LT 646, 652; Bennet v Minister of Community Welfare (1992) [176] CLR 408, 426-427.

[125] Above n 5, 49.

[126] See for example, Creuze v Hunter (1790) 2 Cox 242, 30 ER 113; Powel v Cleaver (1789) 2 Bro C C 500, 29 ER 274; Ex parte Warner [1792] EngR 3170; (1792) 4 Bro C C 101, 29 ER 799; Skinner v Warner (1792) Dick 779, 21 ER 473.

[127] Tenham v Lennard [1724] EngR 758; (1724) 4 Bro P C 302, 2 ER 204.

[128] H A Finlay and R J Bailey-Harris Family Law in Australia (4th ed Butterworths Sydney 1989) 220.

[129] [1969] UKHL 4; [1970] AC 668, 703.

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