A parent or other person legally liable to maintain a child or young person is deemed to have neglected him in a manner likely to cause injury to his health if he fails to provide adequate food, clothing, medical aid or lodging, or, being unable to provide the same. fails to take steps to procure it by applying for Poor Law relief. By child is meant a person under fourteen; a young person is one over fourteen and under sixteen.
Every person over the age of sixteen is guilty of a misdemeanour who wilfully assaults, ill-treats, neglects, abandons, or exposes a child or young person in their charge or care, or causes them to be so ill-treated in a manner likely to cause unnecessary suffering, or injury to health. Neglect is the want of reasonable care such as any responsible person would take; "wilfully" means that the act has been done purposely and intentionally, and not inadvertently or by accident.
Injury to health includes injury to and loss of sight, or hearing, or limb, or organ of the body, and any mental derangement.
To take any unmarried girl under the age of sixteen out of the possession and against the will of her father or mother or of any other person having the lawful care or charge of her - as, for instance, her relative or her mistress - is a criminal offence. So, too, is the abduction of a girl under eighteen for an unlawful purpose. It is equally an offence to take or entice away children under fourteen, or to receive and harbour a child knowing it to have been taken or decoyed away by force or fraud; but no one is liable to prosecution for this offence who has claimed any right to the possession of the child, or who is the mother of the child, or who, in the case of an illegitimate child, claims to be the father. The taking of a girl from a religious motive is no excuse.
It is no defence to a charge of abduction for the defendant to show that he had reasonable grounds for believing the girl was sixteen; but a good defence if he had reasonable cause to believe that she was eighteen.
Although by the common law of the land the father has the legal right to the care and the custody of his legitimate children, and to direct their education and their bringing up until they are twenty-one years of age, the tendency of modern legislation is to give the mother equal rights with the father in the guardianship of the children, rights which formerly she did not possess. The welfare, of the child nowadays, however, is considered more than the rights of the parents, and the court will order the removal of a child from the custody of a parent whom it considers unfit for and unworthy of the charge. The guardianship of illegitimate children, however, devolves solely on the mother.
On the death of the father the mother becomes the guardian of the children who are under age, either alone or jointly with any guardian appointed by the father. The mother of any minor may appoint by deed a guardian or guardians to fulfil those duties after her death and the death of the father, provided that such minor be still unmarried. Guardians when appointed by both parents are to act jointly.
The mother also is empowered to make a provisional nomination of some fit person or persons to act jointly with the father after her death, and the court, if it is satisfied that the father is not a fit and proper person to have the sole custody of the children, will confirm the appointment or make such other order as it thinks proper. The court, also, on the application of the mother, may make such order as it may deem right and proper for the custody of any minor and decide the question of right of access of either parent to such a child, taking into consideration the welfare of the child, the conduct of its parents, and the wishes of the mother as well as those of the father.
The court may give a mother the custody of her infant children, although she may have been guilty of matrimonial misconduct, in cases where both mother and father are equally guilty. With regard to the custody of children under seven, the court may exercise an absolute discretion as against the father or a testamentary guardian in giving the custody of such children to the mother. In making such an order the court will be moved by two considerations - the husband's marital duty to be observed towards his wife and the interests of the child.
The court, however, will not deprive a father of his common law paternal rights when these two objects can be attained consistently with his retaining the custody of the child.
On marriage the husband became entitled to the rents and profits of the wife's real property while they were both living, and after the birth of a child who might inherit the estate, if he survived his wife, he became "tenant by the curtesy." He also became entitled to his wife's personal property, which he could dispose of as he pleased. Broadly speaking, by realty we mean real estate and everything in connection with landed property, while by personal property is meant movables, such as goods and money. As a matter of law, however, land sometimes becomes personalty; but with these legal intricacies we will not trouble our readers.
Before the passing of the Married Women's Property Act the Courts of Equity had recognised the injustice inflicted upon married women by the Common Law doctrine which merged her existence in that of her husband, and hence, apart from any legislation, arose the Equitable Doctrine of Separate Estate. The old distinction between law and equity we may pass over, since the Judicature Acts provide that law and equity are in every case to be administered concurrently; that every judge shall have and exercise the jurisdiction of every other judge, and that where there is any conflict between the rules of equity and law the former are to prevail. To the Chancery Division, however, is still assigned the exclusive administration of certain matters nearly all relating to real estate. Separate Estate
This exists in property of every description, and may arise through an ante-nuptial agreement, or by a post-nuptial agreement, or by virtue of a separation deed, or by express limitation to separate use, or by wife's separate trading. There is also the absolute gift to wife for her separate use by her husband, or by a stranger.