Galloway v Galloway
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Simonds,Lord Oaksey,Lord Radcliffe,Lord Tucker,Lord Cohen |
| Judgment Date | 02 November 1955 |
| Judgment citation (vLex) | [1955] UKHL J1102-1 |
| Date | 02 November 1955 |
| Court | House of Lords |
[1955] UKHL J1102-1
House of Lords
Viscount Simonds
Lord Oaksey
Lord Radcliffe
Lord Tucker
Lord Cohen
Upon Report from the Appellate Committee, to whom was referred the Cause Galloway against Galloway (ex parte), that the Committee had heard Counsel for the Appellant, as well on Monday the 11th, as on Tuesday the 12th, days of July last, upon the Petition and Appeal of Rose Helen Galloway, of 17 Horsegate, Whittlesey, in the County of Cambridge, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 13th of April 1954 might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet (which said Appeal was, in pursuance of an Order of this House of the 23d day of June last, heard ex parte as to the Respondent Percival Owen George Galloway, he not having lodged a printed Case in answer to the said Appeal, though ordered so to do); and Counsel having been heard on behalf of the Queen's Proctor; and due consideration being had this day of what was offered for the said Appellant:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 13th day of April 1954, complained of in the said Appeal, be, and the same is hereby Reversed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Probate, Divorce and Admiralty Division of the High Court of Justice, with a Direction that the Judge shall consider the Petitioner's application and shall make such Order under section 26 (1) of the Matrimonial Causes Act, 1950, as shall seem proper to him, on the basis that he has jurisdiction under the said section of that Act to make an order for the custody, maintenance and education of the infant John Allen, born on the 17th day of August 1950: And it is also further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by her in respect of the said Appeal to this House, such Costs to be taxed in the manner usual when the Appellant sues in formâ pauperis, and the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This appeal raises the question what is the true construction of certain words in section 26 (1) of the Matrimonial Causes Act, 1950, upon which judicial opinion has differed in the Court of Appeal and will, I believe, differ in this House.
The section to which I have referred reproduces, so far as its relevant words are concerned, section 35 of the Matrimonial Causes Act, 1857, and I think that it is important at the outset to emphasise this fact as there has been some disposition to ignore it. Mr. Simon, who argued this case for the Appellant in a manner which left the House in his debt, conceded that these relevant words must be construed in the same sense today as in 1857.
This, then, briefly is the problem. The Appellant, being then a widow, on the 17th August, 1950, gave birth to an illegitimate child of whom the Respondent, then the husband of another woman, was the father. His marriage was dissolved, and in May, 1952, he married the Appellant. On the 26th November, 1953, a decree of dissolution of marriage was granted to her on the ground of his adultery, but the learned Commissioner refused her prayer for an order for custody of the illegitimate child holding that he was bound by the decision of Mr. Justice Barnard in Harrison v. Harrison [1951] P. 476. From this refusal she appealed to the Court of Appeal which by a majority (Jenkin's and Hodson L.JJ., dissentiente Singleton L.J.) dismissed her appeal. Hence her appeal to this House.
My Lords, the jurisdiction of the Divorce Court to make an order for the custody of a child is now founded on section 26 of the Matrimonial Causes Act, 1950, which is in these terms:
"(1) In any proceedings for divorce or nullity of marriage or judicial separation, the Court may from time to time, either before or by or after the final decree, make such provision as appears just with respect to the custody, maintenance and education of the children the marriage of whose parents is the subject of the proceedings, or, if it thinks fit, direct proper proceedings to be taken for placing the children under the protection of the court."
The vital words "the children the marriage of whose parents is the subject of the proceedings" are derived by way of the Judicature (Consolidation) Act, 1925, from section 35 of the Matrimonial Causes Act, 1857, and the question which might have been asked at any time during the last 98 years is whether, in the phrase that I have cited, the word "children" includes illegitimate children. Today it must be answered and the answer cannot be different from that which would have been given in 1857. That does not mean that in regard to particular individuals the result may not be different, for a child who would have been illegitimate in 1857 may today, as the result of the Legitimacy Act, 1926, be a legitimate child. But that only means that, as the law does not stand still, the word "children" meaning thereby "legitimate children" will have a wider content. For this reason, though the House has been referred to a large number of Statutes dealing with matrimonial causes from 1857 to the present day, I do not myself get any help from them except in one aspect to which I will presently refer. The question is, in my opinion, to be decided by an examination of the relevant words in the context of the statute in which they are found and the then prevailing general law.
First, as to the prevailing law. It was in 1857 (as it is today) a cardinal rule applicable to all written instruments, wills, deeds or Acts of Parliament, that "child" prima facie means lawful child and "parent" lawful parent. The common law of England did not contemplate illegitimacy and, shutting its eyes to the facts of life, described an illegitimate child as " filius nullius". This prima facie meaning may in certain circumstances be displaced and a wider meaning given to the words, and it is said that those circumstances are present if the wider meaning is more consonant with the policy of the statute in which the words are found: see per Vaughan Williams L.J. in Woolwich Union v. Fulham Union [1906] 2 K.B. 240. This is not. I think, an entirely happy phrase, for it appears to suggest that the Court begins its consideration of the statute with an impartial mind towards either meaning. It is moreover capable of leading and, I think, has led the Court to find the policy of the Act in its own predilections of a later age rather than in the provisions of the Act itself.
A safer approach to the question of construction and one that has the authority of this House is to say that children means legitimate children unless some repugnancy or inconsistency and not merely some violation of a moral obligation or of a probable intention would result from so interpreting the word: see e.g. per Lord Selborne in Dorin v. Dorin L.R. 7 H.L. at p. 577. Lord Selborne was there dealing with the use of the word "children" in a will, but the principle is the same. Examples of it could be multiplied. I will only refer to what Eve J. said in In re Taylor [1925] 1 Ch. 739, viz., that no other meaning than lawful child can be given to the word unless there is clear evidence in the will itself of an intention to establish another application of the word, and finally express my entire concurrence in the judgment of Harman J. in In re Makein [1955] Ch. 194. I do not think that his examination of this branch of the law can be improved upon.
I turn now to the context of the Act and I do not find one word in it which suggests that illegitimate children were the concern of the Legislature unless it is to be found in the words under discussion: on the contrary, if they were, it would be remarkable that being provided for by section 35 they have not been provided for by other sections of the Act, as admittedly they have not. In effect it appears to me that the argument, which found favour with Lord Justice Singleton, that it is more consonant with the object of the statute to include illegitimate children in section 35 than to exclude them from it, is based not on any policy which is to be found in the statute as a whole but upon a conviction that the Legislature ought to have provided for illegitimate children and the consequent attribution of the wider but unnatural meaning to that word.
It is, I think, permissible to question this attitude and to ask whether the argument that illegitimate children are as much in need of custody, education and maintenance as legitimate children ought to be assumed to have had or to have any weight with the Legislature in this connection. I can see no ground whatever for saying that it ought. It is important not to confuse the issue by the fact that the category of legitimate children has been enlarged by the Act of 1926: for that means only that legitimated children become children within the meaning of the Act of 1857 and its successors as well as of many other Acts. It does not mean that there was or is any disposition for the Legislature when dealing with matrimonial causes to treat legitimate and illegitimate children alike. When, indeed, it is remembered how different even today is the measure meted out to them it is, in my opinion, extravagant to suppose that they would be subject without distinction to a single provision. Let me remind your Lordships that the putative father of an...
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