Vigon v Vigon
| Jurisdiction | England & Wales |
| Year | 1929 |
| Date | 1929 |
| Court | Probate, Divorce and Admiralty Division |
Divorce - Practice - Custody of Child - Previous Order of Court of Summary Jurisdiction - Variation of Order -
There is power in the Divorce Division to make an order for the custody of a child of parents who are parties to a suit for divorce notwithstanding an order made by a court of summary jurisdiction before the suit under the Guardianship of Infants Acts, 1886 and 1925, for the custody of the child. This can be done after a decree nisi of the Divorce Division dissolving the marriage of the parents.
HUSBAND'S PETITION for divorce.
On September 15, 1927, the wife obtained from a court of summary jurisdiction an order under the Guardianship of Infants Acts, 1886 and 1925, for the custody of the child of the marriage, a boy born on April 1, 1926. On December 12, 1928, the husband was granted a decree nisi for the dissolution of his marriage on the ground of the wife's adultery with the co-respondent. The petition contained a prayer for the custody of the child, but, on pronouncing the decree nisi, Bateson J. adjourned the question of granting custody to the husband for argument having regard to the fact that the magistrate's order in favour of the wife was still in force.
H. Durley Grazebrook for the husband. There is no question but that the Court is competent to override the order of the inferior court. I rely on the Guardianship of Infants Act, 1886, ss. 6, 13, which sections are not touched by the Act of 1925. The administration of the 1886 Act is entrusted only to the High Court and to county courts, and s. 6 gives power to remove any guardian appointed by virtue of the Act. Further s. 13 enacts that: “Nothing in this Act contained shall restrict or affect the jurisdiction of the High Court of Justice in England …. to appoint or remove guardians ….”, and that section concludes the matter. I also rely on the Guardianship of Infants Act, 1925, s. 3, sub-s. 4, which provides for variation or discharge by a subsequent order.
[He referred to Manders v. Manders.F2]
S. R. Sidebottom for the wife. There is no power in this Court to vary the magistrate's order for custody. If the husband acts upon an order for custody granted to him here he will be within the mischief of the Act of 1925 under s. 7, sub-s. 5. Custody is not guardianship, and the Act of 1886 in...
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Re H. (A Minor) (Wardship: Jurisdiction)
...subject to orders made in magistrates1 courts, unless the parties prefer to retain the magistrates' order; Vigon v. Vigon & Kuttner, (1929) Probate, 157. 12 The third group of case is those arising under the Childrens Acts; i.e., the Children Act, 1948 and the Children and Young Persons Act......