Custody and Guardianship
The traditional rule, still in force in this country, is that the custody and guardianship of a legitimate child are vested in the father. While father and mother are living together, the mother has no right of guardianship, although curiously enough she can appoint a guardian to act jointly with the father after her death. On the father's death, the mother becomes the guardian either alone or jointly with a guardian appointed by the father or the Court. This rule is, however, subject to the very important qualification that, whenever a question of custody or upbringing comes before a Court, the paramount consideration is the child's welfare. In practice, therefore, the superior legal right of the father becomes relevant only occasionally.
Most custody disputes between father and mother arise on the breaking-up of a home. In such cases the problem of what to do with the children is often painful and difficult, and the Court may have to choose the lesser of two evils. Even where the parents are in agreement, it may be part of a bargain between them suiting their interests but not always those of the child.
Where the welfare of any child is in jeopardy, the State has power to intervene and, through the Courts, exercise control over the child. The principal source of this power is the Child Welfare Act 1925. A child under 17 who is neglected, indigent, or delinquent, or not under proper control, or living in an environment detrimental to his physical or moral welfare, may be brought before a Children's Court, together with anyone having custody of him. This Court, which is presided over by a Magistrate and always sits in private, may place the child under the supervision of a child welfare officer or may commit him to the care of the Superintendent of Child Welfare, in which case it makes an order specifying the religion in which he is to be brought up. The Superintendent becomes the guardian of all children committed to his care; they are not permanently maintained in an institution unless it is unavoidable, but are placed in a foster home.
Children's Courts have jurisdiction over offences committed by children under 17, except murder and manslaughter on the one hand and minor traffic offences on the other. An ordinary Court may refer to a Children's Court a charge against a child aged 17. Charges are inquired into but, if there is a finding of guilty no conviction is entered. A Children's Court may impose any sentence that could be imposed by an ordinary Court – thus it may fine an offender or, if he is over 15, send him to borstal or may place him under supervision or commit him to the care of the Superintendent of Child Welfare. There is a right of appeal to the Supreme Court against a finding of guilt or a sentence.