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Infant

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INFANT, in non-legal use, a very young child, a baby, or one of an age suitable to be taught in an "infant school"; in law, a person under full age, and therefore subject to disabilities not affecting persons who have attained full age.

This article deals with "infants" in the last sense; for the more general sense see INFANCY and CHILD. The period of full age varies widely in different systems, as do also the disabilities attaching to nonage (non-age). In Roman law, the age of puberty, fixed at 14 for males and 12 for females, was recognized as a dividing line. Under that age a child was under the guardianship of a tutor, but several degrees of infancy were recognized. The first was absolute infancy; after that, until the age of seven, a child was in f antiae proximus, and from the eighth year to puberty he was pubertati proximus.

By the law of England full age is 21, and all minors alike are subject to incapacities. The period of 21 years is regarded as complete at the beginning of the day before the birthday; for example, an infant born on the first day of January attains his majority at the first moment of the 3 z st of December. The incapacity of an infant is designed for his own protection, and its general effect is to prevent him from binding himself abso lutely by obligations. Of the contracts of an infant which are binding ab initio, the most important are those relating to "neces saries." By the Sale of Goods Act, 1893, an infant liable on a con tract for necessaries can be sued only for a reasonable price, not necessarily the price he agreed to pay. The same statute declares "necessaries" to mean "goods suitable to the condition in life of the infant, and to his actual requirements at the time of the sale and delivery." In the case of goods having a market price, the market price is reasonable. In all other cases the question is one of fact for the jury. The protection of infants extends some times to transactions completed after full age ; the relief of heirs who have been induced to barter away their expectations is an example. "Catching bargains," as they are called, throw on the persons claiming the benefit of them the burden of proving their substantial righteousness.

At common law a bargain made by an infant might be rati fied by him after full age, and would then become binding. Lord Tenterden's act required the ratification to be in writing. But now, by the Infants' Relief Act, 1874, "all contracts entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for neces saries), and all accounts stated, shall be absolutely void," and "no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted dur ing infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratifica tion after full age." For some years after the passage of this statute highly conflicting views were held as to the meaning of the part of sec. 2 whereby it was enacted that "no action shall be brought, whereby to charge any person . . . upon any ratifica tion made after full age of any promise or contract made during infancy." Some authorities were of opinion that the section only applied to the three classes of contract made void by the previous section, viz., for goods supplied, money lent and on ac count stated. Others thought the effect to be that no contract, except for necessaries, made during infancy could be enforced after the infant came to full age. After several conflicting deci sions it has been settled that both these views were wrong. Of the infant's contracts voidable at common law there were two kinds. The first kind became void at full age, unless expressly ratified. The second kind were valid, unless repudiated within a reasonable time after full age was attained by the infant. The Infants' Relief Act (sec. 2) strikes only at the first class and leaves the second untouched. Thus a promise of marriage made during infancy cannot be ratified so as to become actionable; but an infant's marriage settlement, being of the second class, is valid, unless it is repudiated within a reasonable time after the infant attains full age. What is a reasonable time depends on all the circumstances of the case. In a case decided in 1893 a settlement made by a female infant was allowed to be repudiated 3o years after she attained full age, but the circumstances were exceptional. A contract of marriage may be lawfully made by infants; since the passing of the Age of Marriage Act, 1929, mar riageable age is i6 for both sexes. So an infant may bind himself by contract of apprenticeship or service. Since the passing of the Wills Act, an infant, except he be a soldier in actual mili tary service or a seaman at sea, is unable to make a will. Infancy is in general a disqualification for public offices and professions, e.g., to be a member of parliament or an elector, a mayor or burgess, a priest or deacon, a barrister or solicitor, etc.

Before 1886 the custody of an infant belonged in the first place, and against all other persons, to the father, who was said to be "the guardian of his children by nature and nurture" ; and the father might by deed or will dispose of the custody or tuition of his children until the age of 21.

The Guardianship of Infants Acts.

The Guardianship of Infants Act, 1886, placed the mother almost on the same foot ing as the father as to guardianship of infants. On the death of the father the mother becomes guardian under the statute, either alone when no guardian has been appointed by the father, or jointly with any guardian appointed by him under 12 Chas. II. c. 24. A change of the law even more important is that whereby the mother may by deed or will appoint a guardian or guardians of her infant children to act after her death. If the father survives the mother, the mother's guardian can only act if it be shown to the satisfaction of the court that the father is unfitted to be the sole guardian. On the death of the father, the guardian so appointed by the mother acts jointly with any guardian appointed by the father. The act of 1886 also gives power to the high court and to county courts to make orders, upon the application of the mother, regarding the custody of an infant, and the right of access thereto of either parent. The court must take into consideration "the welfare of the infant, and . . . the conduct of the parents, and . . . the wishes as well of the mother as of the father." The same statute also empowers the high court of justice, "on being satisfied that it is for the welfare of the infant," to "remove from his office any testamentary guardian or any guardian appointed or acting by virtue of this act," and also to appoint another in place of the guardian so removed. Power is given to a court sitting in divorce practically to take away from a parent guilty of a matrimonial offence all rights of guardian ship.

The passing of the Guardianship of Infants Act, 1925, has brought about a further very important change in the law on this subject and this act is to be "construed as one with" the act of 1886. The welfare of the infant is declared to be "the first and paramount consideration" in the making of a custody order, but the principle of equality between the sexes is "now to obtain with respect to the guardianship of infants," so that "the mother shall have the like powers to apply to the court" as are possessed by the father. It is, however, in the extension of jurisdiction to courts of summary jurisdiction that the act is most remarkable, since it confers upon these courts powers differing very widely from those which formed the original basis of their jurisdiction.

This extension is of immense benefit to the very poor, amongst whom quarrels as to the custody of children are not less com mon than amongst those able to afford more expensive litigation. The incorporation of the act of 1886 with the act of 1925 has given rise to a curious difficulty. The former act gave the mother the right to apply, but did not mention the father; but as right of application to a court of summary jurisdiction is purely statu tory, it would appear that the father had no right to apply to such a court. Sec. 16 of the Administration of Justice Act (1928), however, has explicitly conferred the right of application on the father.

Another radical change has been made in the rights of parents as to guardianship of their children. In consequence of several cases where, after children had been rescued by philanthropic persons from squalid homes and improper surroundings, the courts had felt bound by law to redeliver them to their parents, the Custody of Children Act, 1891, was passed. A parent who has abandoned or deserted his child, is, prima facie, unfit to have the custody of the child. And before the court can make an order giving him the custody, the onus lies on him to prove that he is fit. The same rule applies where the child has been allowed by the parent, "to be brought up by another person at that person's expense, or by the guardians of the poor-law union, for such a length of time and under such circumstances as to satisfy the court that the parent was unmindful of his parental duties." Many cases of this kind can now be dealt with most satisfactorily under the Adoption of Children Act, 1926, which has decreased to a large extent the importance of the earlier legislation. (See

age, act, father, guardian, infants, court and mother