Guardianship Act 1973

JurisdictionUK Non-devolved
Citation1973 c. 29


Guardianship Act 1973

1973 CHAPTER 29

An Act to amend the law of England and Wales as to the guardianship of minors so as to make the rights of a mother equal with those of a father, and so as to make further provision with respect to applications and orders under section 9 of the Guardianship of Minors Act 1971 and with respect to the powers of a guardian under that Act in relation to the minor's property, and to amend section 4(2) of the Matrimonial Proceedings (Magistrates' Courts) Act 1960; to make provision in relation to like matters for Scotland; and for purposes connected therewith.

[5th July 1973]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

I England and Wales

Part I

England and Wales

S-1 Equality of parental rights.

1 Equality of parental rights.

(1) In relation to the custody or 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 to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.

(2) An agreement for a man or woman to give up in whole or in part, in relation to any child of his or hers, the rights and authority referred to in subsection (1) above shall be unenforceable, except that an agreement made between husband and wife which is to operate only during their separation while married may, in relation to a child of theirs, provide for either of them to do so; but no such agreement between husband and wife shall be enforced by any court if the court is of opinion that it will not be for the benefit of the child to give effect to it.

(3) Where a minor's father and mother disagree on any question affecting his welfare, either of them may apply to the court for its direction, and (subject to subsection (4) below) the court may make such order regarding the matters in difference as it may think proper.

(4) Subsection (3) above shall not authorise the court to make any order regarding the custody of a minor or the right of access to him of his father or mother.

(5) An order under subsection (3) above may be varied or discharged by a subsequent order made on the application of either parent or, after the death of either parent, on the application of any guardian under the Guardianship of Minors Act 1971, or (before or after the death of either parent) on the application of any other person having the custody of the minor.

(6) Section 15(1) to (3) and section 16 of the Guardianship of Minors Act 1971 (jurisdiction and procedure) shall apply for the purposes of subsections (3) to (5) above as if they were contained in section 9 of that Act, except that section 15(3) shall not exclude any jurisdiction of a county court or a magistrates' court in proceedings against a person residing in Scotland or Northern Ireland for the revocation, revival or variation of any order under subsection (3) above.

(7) Nothing in the foregoing provisions of this section shall affect the operation of any enactment requiring the consent of both parents in a matter affecting a minor, or be taken as applying in relation to a minor who is illegitimate.

(8) In the Sexual Offences Act 1956 there shall be substituted for section 38 the provisions set out in Schedule 1 to this Act, and in the Mental Health Act 1959 in section 49(4)(d ) (under which for purposes of that Act a man deprived under the said section 38 of authority over a patient is not to be treated as the patient's nearest relative) for the word ‘man’ there shall be substituted the word ‘person’; but, save as aforesaid, nothing in this section shall be taken to affect the provisions of the Mental Health Act 1959 as to the person who is ‘the nearest relative’ for purposes of the Act.

S-2 Jurisdiction and orders on applications under s. 9 of Guardianship of Minors Act 1971.

2 Jurisdiction and orders on applications under s. 9 of Guardianship of Minors Act 1971.

(1) In sections 9, 13, 15 and 16 of the Guardianship of Minors Act 1971 there shall be made the amendments provided for by Part I of Schedule 2 to this Act (being amendments providing for mother and father to be treated alike in relation to applications under section 9 of that Act, and amendments relating to cases in which custody is given to an individual other than one of the parents); and accordingly section 9 and section 15(3) to (6) shall have effect as they are set out in Part II of that Schedule with the amendments required by this subsection.

(2) Where an application made under section 9 of the Guardianship of Minors Act 1971 relates to the custody of a minor under the age of sixteen, then subject to sections 3 and 4 below—

(a ) if by an order made on that application any person is given the custody of the minor, but it appears to the court that there are exceptional circumstances making it desirable that the minor should be under the supervision of an independent person, the court may order that the minor shall be under the supervision of a specified local authority or under the supervision of a probation officer;

(b ) if it appears to the court that there are exceptional circumstances making it impracticable or undesirable for the minor to be entrusted to either of the parents or to any other individual, the court may commit the care of the minor to a specified local authority.

(3) Where the court makes an order under subsection (2)(b ) above committing the care of a minor to a local authority, the court may make a further order requiring the payment by either parent to that authority while it has the care of the minor of such weekly or other periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent.

(4) On an application under section 9 of the Guardianship of Minors Act 1971 the court may, in any case where it adjourns the hearing of the application for more than seven days, make an interim order, to have effect until such date as may be specified in the order and containing—

(a ) provision for payment by either parent to the other, or to any person given the custody of the minor, of such weekly or other periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of the parent on whom the requirement is imposed; and

(b ) where by reason of special circumstances the court thinks it proper, any provision regarding the custody of the minor or the right of access to the minor of the mother or father;

but an interim order under this subsection shall not be made to have effect after the end of the three months beginning with the date of the order or of any previous interim order made under this subsection with respect to the application, and shall cease to have effect on the making of a final order or on the dismissal of the application.

(5) A magistrates' court may also make such an interim order where under section 16(4) of the Guardianship of Minors Act 1971 it refuses to make an order on an application under section 9 on the ground that the matter is one that would more conveniently be dealt with by the High Court; but an interim order under this subsection shall not be made so as to have effect after the end of the three months beginning with the date of the order.

(6) Where an application under section 9 of the Guardianship of Minors Act 1971 relates to a minor who is illegitimate, references in subsections (2) and (4)(b ) above and in sections 3 and 4 below to the father or mother or parent of the minor shall be construed accordingly (but subsections (3) and (4)(a ) above shall not apply).

(7) In section 16(2) of the Guardianship of Minors Act 1971 (which provides for appeals from orders made by a county court under that Act) for the words ‘made by a county court under this Act’ there shall be substituted the words ‘made on an application under this Act by a county court’.

(8) For purposes of this section ‘local authority’ means the council of a non-metropolitan county or a metropolitan district or London borough, or the Common Council of the City of London, and, until the coming into force of the Local Government Act 1972 , includes the council of any county or county borough; and the matters which under section 2 of the Local Authority Social Services Act 1970 are to stand referred to an authority's social services committee shall include all matters relating to the discharge by the authority of functions under this section.

S-3 Additional provisions as to supervision orders.

3 Additional provisions as to supervision orders.

(1) Where the court makes an order under section 2(2)(a ) above (in this section referred to as a ‘supervision order’), and the order provides for supervision by a probation officer, then—

(a ) if it is an order of the High Court, the officer responsible for carrying out the order shall be such probation officer as may be selected under arrangements made by the Secretary of State; and

(b ) in any other case the order shall...

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