REPORTS OF COMMITTEES
| Date | 01 January 1960 |
| Published date | 01 January 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00575.x |
REPORTS
OF
COMMITTEES
CONFLICTS
OF
JUI~ISDICTION
AFFECTING
CHILDREN
TECHNICAL questions
on
the conflict of laws do not often find their
way into the daily Press, but some time ago the newspapers began
to take an interest in the conflicts of jurisdiction over children
which had arisen between the English and the Scottish courts. Early
in
1958
the Lord Chancellor appointed a Committee including English
and Scottish judges and lawyers under the chairmanship of Lord
Justice Hodson
“
to consider and report what alterations in the law and practice
are desirable to avoid conflicts of jurisdiction between courts
in different parts of the United Kingdom in proceedings relating
to the custody of children and
to
wards
of
court and to ensure
the more effective enforcement of orders made in such proceed-
ings outside the part of the United Kingdom in which they were
made.”
This Committee has now made its Report,’ and the legal chaos
which
it
reveals is remarkable. That the substantive principles
which govern the law of custody over children are quite different
in England and Scotland
is
well known: indeed one
of
the most
acute problems arises from the restriction of custody orders
in
Scotland to minors under the age of sixteen. This lack of uniformity
in substantive law would, however, hardly give rise to any complaint
in practice if there were any reasonably clear principles either of
choice of law
or
of choice of jurisdiction
so
as to obviate the danger
of a clash in an individual case. Since in all three parts of the United
Kingdom the courts always apply the
Zem
fori
in all matters concern-
ing the custody of infants
or
minors, order can be produced only
through uniform rules
of
jurisdiction, and
it
was this question to
which the Committee addressed its main attention.
Quite apart from the difference in jurisdictional criteria between
the three law districts concerned, the rules governing jurisdiction
over the custody of children are, in each part of the United Kingdom,
so
complicated as almost to defy analysis. This is especially true
of
England where the dichotomy between law and equity affects the
matter (otherwise than in Scotland) and where the jurisdiction
of
inferior courts goes further than in Northern Ireland. In England
one has to take into account
(1)
the inherent powers of the Chancery
Division,
(2)
its jurisdiction under the Guardianship of Infants Acts,
(3)
that of the Queen’s Bench Division in habeas corpus proceedings,
(4)
that of the Probate, Divorce and Admiralty Division in matri-
monial causes,
(5)
that of the county courts under the Guardianship
64
1
Report
of
the Committee on Conflicts
of
Jurisdiction affecting Children,
Cmnd.
842.
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