The issue was the meaning of ‘in the custody of a parent’ in the Limitation Act 1954.
Held: A 15-year-old living away from home and working as an agricultural trainee was not in the custody of a parent for this purpose. ‘Custody’ in the Limitation Act meant the actual exercise of powers of control.
The parental right to custody is: ‘a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.’
One facet of the right to custody is the right to refuse consent to the issue of a passport.
As to the case of Agar-Ellis: ‘That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unreasoning obedience to his commands. If a son disobeyed, his father would cut him off with a shilling. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21.’
Sachs LJ expressly referred to the parent’s ‘ability to restrict the liberty of the person’, which lasted until the age of discretion, and distinguished between the parental power and the court’s power, which lasted until the age of majority
Lord Denning MR put it this way: ‘the legal right of a parent to the custody of a child . . is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.’
Judges:
Lord Denning Mr, Sachs LJ
Citations:
[1970] 1 QB 357, [1969] 3 All ER 578
Statutes:
Jurisdiction:
England and Wales
Citing:
Horrendous – In re Agar-Ellis (No 2) CA 24-Jul-1883
A father has a legal right to control and direct the education and bringing up of his children until they attain the age of twenty-one years, even although they are wards of Court, and the Court will not interfere with him in the exercise of his . .
Cited by:
Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 18 April 2022; Ref: scu.238338