The Legitimacy Act, 1959– ‐A Matter Of Principle
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00599.x |
| Date | 01 May 1960 |
| Published date | 01 May 1960 |
MAY
1960
STATUTES
291
THE
LEGITIMACY
ACT,
1959-A
MATTER
OF
PRINCIPLE
IN
his note
on
the Legitimacy Act, 1959,' Professor Kahn-Freund
points out that the common factor
of
many of its provisions is
"
to
reduce the incidence of illegitimacy and also further to reduce the
difference between the status of legitimate and illegitimate child-
ren."
a
This trend can be seen in other statutes,s and, indeed, the
judges themselves have not been slow to reflect the change
in
public opinion on this subject.* However,
it
is the object
of
this
note to deal with one aspect of the 1959 Act which was not touched
upon by Professor Kahn-Freund but which will be thought by
some people
to
be
one
of
its most significant features.
Prior to the Legitimacy Act,
1959,
if
a custody dispute arose
between the parents
of
an illegitimate child it could only
be
settled
either
on
the mother's application
in
the Queen's Bench Division
for
a writ
of
habeas corpus
or
on
the father's application in the
Chancery Division for the child to be made a ward
of
court and
for physical custody to
be
entrusted to him.s As Professor Kahn-
Freund points out in his note6 it will now
be
possible as a result
of section
3
(1)
of
the 1959 Act for such a dispute to
be
settled
under the Guardianship
of
Infants Acts, and,
in
particular, the
cheap and speedy summary procedure provided by these Acts will
be available to both parents without distinction.
Hence
procedur-
ally the lot of both parents has been improved but how,
if
at all,
has the new Act affected the principles governing such disputes?
Until the 1959 Act it seems tolerably clear that in a dispute as
to
the custody of an illegitimate child the mother could stand
on
1
(1960)
23
M.L.R., pp. 56-60.
2
Ibid.
p. 56.
a
See,
e.g.,
the Matrimonial Proceedings (Children) Act, 1958, which,
inter
alia,
gives the High Court power, in certain circumstances, to deal with the custody
of the illegitimate ahild of
one
of
the parties to
a
matrimonial dispute. The
principles to be applied
to
such a dispute are not specified but presumably the
plan put forward by the natural parent will generally prevail unless it is
shown
to
be detrimental to the child's welfare
in
Bome very serious and
important respect.
4
See,
e.
.,
Brock
v.
Wollams
[19??]
2 E.B.
388
(illegitimate child held to be a
"
memfer of the tenant's famil for the purpose of succeeding to
a
statutory
tenancy under
8.
12
(1)
(9)
olthe Increase of Rent and Mortgage Interest
(Restrictions) Act, 1920);
Gallozoay
v.
Gelloway
[1955]
3
All
E.R.
429 (the word:
"
children the marriage of whose parents
ia
the subject
of
the proceedings
in
8.
26
(1) of the Matrimonial Causes Act, 1950, held to include an illegitimate
child of the parties, thereby giving the Divorce Court power to deal with its
custody, etc.);
Re
D.
(An Infant)
[1958]
3
All
E.R.
716 (where it was held
that the mother of
an
illegitimate child could adopt
it
on
her sole application,
thereby removing
a
number of the legal disadvantages of illegitimacy).
But
F;ontrast
Re Makein (deceased)
[1955] Ch.
194,
where it was held that the words
infant
son
"
in
a.
1.
(1)
of the Inheritance
(Family
Provision) Act,
1938,
d?
not include
an
illegitlmate child
so
as
to enable him to claim
on
his father
8
estate. The Legitimacy Bill, as presented in the Commons,
contained
a
clause
which would have reversed this decision, but it was deleted during the passage
of
the Bill.
0
LOC. cit.
p. 59.
5
See,
e.g., Re A. (An Infant)
[I9551
2
All
E.R.
202.
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