Bastardy Orders and the Conflict of Laws

Author(s): P. R. H. Webb
Source: The Modern Law Review, Vol. 26, No. 3 (May, 1963), pp. 304-307
Published by: Wiley on behalf of the Modern Law Review
Stable URL: https://www.jstor.org/stable/1092757
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304 THE MODERN LAW REVIEW VOL. 26

BASTARDY ORDERS AND THE CONFLICT OF LAWS

IT is hopefully-and with a nice sympathy for the lay magistracy-

stated in Dicey's Conflict of Laws 1 that " since jurisdiction to make
affiliation orders was and is entrusted to the courts of summary
jurisdiction, it was desirable to exclude intricate questions of the
conflict of laws from their consideration." A perusal of the
decision of the Divisional Court of the Queen's Bench Division in
Buckeridge v. Hall 2 will certainly cause the reader to wonder
what questions of the conflict of laws, whether intricate or not,
are capable of bedevilling the lay bench.
In that case, the complainant, a British subject and a citizen
of the United Kingdom and Colonies, relying on sections 1 and
3 (1) of the Affiliation Proceedings Act, 1957," sought an affiliation
order against the respondent. Quarter sessions had found the latter
to be the father of the complainant's boy, born in Edmonton,
Middlesex, ilnOctober 1961. The child had subsequently been sent
to Jamaica as the complainant could not afford to maintain him
in England. The difficulty surrounding the case lay in the fact
that the complainant, though resident in England at all material
times, had never acquired a domicile of choice in England. At
the time of the child's birth she still possessed her Jamaican domi-
cile of origin. This factor led both the magistrate at first instance
and quarter sessions on appeal to refuse an order. The simple
question confronting the High Court was therefore: is there juris-
diction to make an affiliation order if the child is born in England
to a mother resident, but not domiciled, in England at the date
of the child's birth-assuming, of course, that the father is also
amenable to the jurisdiction ?
Salmon J. (who delivered the judgment of the court) observed
very truthfully that there was nothing in the language of the
1957 Act to suggest that a mother's foreign domicile should have
any significance in cases where she was resident in England and
the child was born there. " It seems to me," he added, " that
the statute is concerned more with residence than with domicile." 4
He also considered that there was no reason on principle for
denying a mother in the position of the present complainant the
right of applying for an order under the Act.5

1 7th ed., 1958, p. 405.

2 [1963] 2 W.L.R. 354 (Lord Parker C.J., Salmon and Winn JJ.).
3 The sections read as follows: s. 1: "A single woman who is with child.
or who has been delivered of an illegitimate child, may apply by complaint
to a justice of the peace for a summons to be served on the man alleged
by her to be the father of the child.'
s. 3 (1): "A complaint under s. 1 of this Act-(a) shall not be made
except to a justice of the peace acting for the petty sessions area (within
the meaning of the Magistrates' Courts Act, 1952) in which the mother of
the child resides, .. "
4 [1963] 2 W.L.R. at p. 356.
5 Ibid.

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MAY 1963 NOTES OF CASES 305

Although this might reasonably be thought to be suff

dispose of the case in the complainant's favour, it was
for the court to examine certain authorities put forward
for the respondent. The two main ones were R. v. Blane 6 and
R. v. Humphreys, ex p. Ward.7 In the former case, the bastard
child had, as in the present case, been born to a mother with
a foreign domicile at the date of the child's birth. It appears
that she had been residing in England until shortly before the
child's birth, which took place in France, and that she had never
lost her French domicile of origin. In the case under review, the
distinguishing factor is that the child was born in England. The
main reason for the unanimous refusal of Lord Denman C.J.,
Erle and Coleridge JJ. in the Blane case to make an order was that,
even if the child was born illegitimate according to French law,
the English bastardy statutes contemplated only the case of
the bastard child born in England.8 Coleridge J. added a sub-
sidiary reason for refusing jurisdiction, viz., that the very necessity
for referring to some foreign law in order to ascertain the legitimacy
of the child ought to bar the applicant, since the court could not
be expected to traverse " an immense field of inquiry . . . respect-
ing the status of children according to the different laws of
different countries." 9
Perennially difficult to reconcile with this decision is the Ward
case: here the bastard child had been born in New South Wales
to a mother domiciled in England at the time of the concept
and birth of the child. Shortly after the birth, the mother re
her ordinary residence in England and there proceeded against
the putative father. It was urged on the latter's behalf that,
the child having been born out of England, R. v. Blane entitled
the court to refuse jurisdiction. This view commended itself to
Avory J., but Bankes and Lush JJ. appear to have been willing
to take a more humanitarian approach than the judges in the
Blane case, or, perhaps, a different outlook on the policy of the
bastardy legislation.10 Possibly they merely felt it right not to
close the doors of the court on the situation before them. At any
rate, they decided that the fact that a bastard child was born abroad
to parents domiciled and resident in England did not bar an
affiliation suit in England, inasmuch as there would be no need

0 (1849) 13 Q.B. 769.

7 [1914] 3 K.B. 1237 (D.C.).
8 See (1849) 13 Q.B. at pp. 772, 774 and 773 respectively.
9 At p. 773.
10 Both took the case of the single woman, domiciled and resident in England,
who, to hide her shame, goes to France or Scotland for her confinement,
comes straight back to England after the birth and then takes out a bastardy
summons against the putative father, also domiciled and resident in England.
Both judges (at pp. 1240, 1243) considered that an affiliation order should
be made in those circumstances and took the view that the case before
them was essentially the same.

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806 THE MODERN LAW REVIEW VOL. 26

for the court to consider any law other than English law in
determining the child's status.1
Salmon J. acknowledged that the problem whether Blane was
correctly decided and, if so, whether it could be reconciled with
the Ward case was still open, but he considered that no authority
required the court to hold that the foreign domicile of a mother
resident in England could oust the court's jurisdiction to make an
affiliation order in respect of a child born to her in England.12
Their lordships therefore agreed that the magistrates' court had
jurisdiction to entertain the complainant's application.
It had also been contended for the respondent that it was a
condition precedent to the making of the complaint that the
child was illegitimate, that this was a matter of status to be
determined by the law of the complainant's Jamaican domicile,
that the court had to be satisfied that the child was illegitimate
by that law and that there was no evidence that this was the case.
Counsel for the complainant argued that the 1957 Act was not
concerned with status and that the word " illegitimate " in section
1 meant illegitimate according to English law, inasmuch as the
object of the Act was to prevent the child's becoming a burden on
public funds. Unfortunately, no final views were expressed upon
this: Salmon J. assumed in the respondent's favour that the Act
was concerned with the child's status and concluded the matter
by holding that the child was undoubtedly illegitimate in Engli
law and must, there being no evidence to the contrary, be pre-
sumed to be a bastard according to Jamaican law also.13
It is, of course, impossible to cavil at the social justice of this
decision, but it must at the same time be remembered that the
court excused itself through the medium of the presumption
11 Cf. O'Dea v. Tetau [1951] 1 K.B. 184 (D.C.) in which it w-as held that
an affiliation order could not be made in respect of a bastard child born
in Hamburg to a German woman domiciled and resident in Germany at
the time. At p. 189, Donovan J. expressed his agreement with what is
stated in note 10, supra. This case was followed in R. v. Wilson. ex p.
Periera [1953] 1 Q.B. 59 (D.C.), where, notwithstanding the passing of
s. 27 (2) of the Maintenance Orders Act, 1950. it was held that there was
no jurisdiction to make an affiliation order in respect of a bastard child
born in Gibraltar to a mother domiciled and resident in Gibraltar at the
time of its birth. It will be noted that s. 2 (1) (c) of the 1957 Act does not
remedy the plight of the complainants in the above cases.
12 [1963] 2 W.L.R. at pp. 357, 358. Blane may be thought to be the more
supportable of the two if the object of the Act is still at bottom thought to
be the relief of an English parish, or, to put it in more modern terms, the
relief of the local ratepayers. On the other hand, if the object of the legisla-
tion may now properly be regarded as being to prevent the child's becoming
a burden on the country's taxpayers as opposed to the mere ratepayers.
the Ward case is not quite so insupportable as it may at first sight seem
If facts such as those in the Blane case were to arise again, the woman
would be well advised to resort to an English magistrates' court before
leaving the country for her confinement, as envisaged by s. 3 (1) of the
1957 Act.
Is [1963] 2 W.L.R. at pp. 358-359. The unreality engendered in applying
this presumption in cases concerned with status is to be seen in De Reneville
v. De Reneville [1948] P. 100 (C.A.), the case on which Salmon J. relied.

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MAY 1963 NOTES OF CASES 807

from
from embarking
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discoveryof
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the law of Jamaica.
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As
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of sense
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was an unmarried person. But the situation could have been
far more complicated: it is not hard to envisage facts which might
have required the court to consider whether it must decide her
single status by reference to English or Jamaican conflict of laws
rules-a task for which the High Court is better equipped than
a lay magistrates' court.14 It is fortunate, too, perhaps, that no
court has yet been asked to make an order in respect of a child
who is by English standards illegitimate but is regarded by the
law of his mother's domicile at the date of his birth as neither
legitimate nor illegitimate because it does not draw such a distinc-
tion. Had such difficulties as these been present to the mind of the
court in this case, it might well have been excused for falling back
on the secondary reasoning of Coleridge J. and denying
jurisdiction altogether.
P. R. H. WEBB.

CONVERSION BY A COLLECTING BANKER

THE decision of the Court of Appeal in Orbit Mining and Trading

Co., Ltd. v. Westminster Bank, Ltd.1 may at first sight seem to
have ended the unfavourable trend, evidenced in a series of cases
over many years, which had reduced almost to nothing the protec-
tion afforded by statute to a collecting banker. That protection, pro-
vided before October 17, 1957, by section 82 of the Bills of
Exchange Act, 1882, and section 17 of the Revenue Act, 1888, and
subsequently by section 4 of the Cheques Act, 1957, can today
as always be pleaded only where the banker can show that he
receives payment of the cheque or other order for payment
without negligence-which meant more than appeared, for the
negligence could arise before there was any question of collection
and attach itself later, as where the banker had. failed to take up
references on the opening of the account for which the cheque
was later collected. The most serious head of negligence was
failure to observe a fiduciary relationship between the drawer or
payee of the instrument and the person for whom collection was
undertaken; or, if it was observed, either neglect to make due

14 Presumably, by English conflict rules, the Shaw children in Shaw v. Gould

(1868) L.R. 3 H.L. 55, were born to a " single woman."
Would one, assuming that the son in question in Re Bischoffsheim [1948]
Ch. 79, had been born in England, and that the facts were otherwise the
same, have tested his legitimate status for the purpose of possible bastardy
proceedings by reference to English or New York conflict rules? Cf. s. 2 (2)
of the 1957 Act, which appears to cover only a Pugh v. Pugh ([1951] P. 482)
situation so far as the conflict of laws aspect of the matter goes and thus
precludes any application of foreign conflict rules.
1 [1962] 3 W.L.R. 1256.

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