Opinion Number. 1077

Subject

NAVAL FORCES OF COMMONWEALTH ENLISTMENT OF PERSON UNDER TWENTY-ONE WITH MOTHER'S CONSENT ONLY, FATHER BEING ALIVE: EXTENT TO WHICH ENLISTMENT IS BINDING: MEANING OF 'PARENT'

Key Legislation

NAVAL DEFENCE ACT 1910, s. 25A

Date
Client
The Secretary, Department of the Navy

The Secretary to the Department of the Navy has forwarded for advice the following memorandum:

I am commanded by the Naval Board to forward herewith Form A.S.55a and Consent Paper in respect of the entry of A.B.C, Officers' Steward 3rd Class, in the R.A.N. The father of the lad has written to the Naval Board protesting against the entry of his son in the R.A.N, and advising that he did not give his consent to such entry. The father admits that the mother's signature on the Consent Paper is genuine, but disputes the fact that his whereabouts at the time the Consent Paper was signed were unknown.

(2) The Board would be glad to receive advice as to whether the lad in question can be held to his engagement in the R.A.N. Section 25A of the Naval Defence Act 1910-1911 provides as follows:

  1. Any person under the age of twenty-one years may, with the consent in writing of his parent or guardian, enlist for service in the Permanent Naval Forces for such period as is prescribed, but that period shall not exceed the time required for him to attain the age of thirty years.
  2. The enlistment of any person in pursuance of this section shall be binding on him both during his infancy and after he attains his majority.

I am of opinion that enlistment without the required consent would not be binding on a person under the age of twenty-one years.

The question then arises as to the meaning of the word 'parent' in section 25A.

It is stated in Halsbury's Laws of England (Vol.17, Infants and Children, p. 105) that: 'A father has a natural jurisdiction over, and a right to the custody of, his child during infancy . . . The right to custody may be enforced by writ of habeas corpus . . . and is absolute even as against the mother . . . except where the father forfeits it by his own act or conduct'.

Such forfeiture can, of course, only be effected by order of a court of competent jurisdiction.

'The mother of an infant child has generally during the lifetime of the father no rights as against him with respect to the custody and control of such child' (ibid, p. 107). She may, however, in certain cases, obtain legal custody of the child.

In my opinion, therefore, the word 'parent' in section 25A of the Naval Defence Act means the parent who is entitled to the custody of the person enlisting.

It may, of course, happen that a boy under twenty-one years of age is living out of the custody of his father or mother. As to that Halsbury says (p. 109): 'Where an infant, who has passed tender years and is of a reasonable age, is out of a parent's custody, and desires to remain out of it, he will not be compelled to return to it, if his welfare does not so require'.

In such a case the boy would, I think, require to obtain his parent's consent in order that his enlistment under section 25A would be binding. In the event, however, of his enlisting without such consent and desiring to continue to serve, his parent could not, I think, compel him to leave the service.

In the present case, assuming that C.'s father had not, at the date of C.'s enlistment, forfeited his right to the custody of his son, I am of opinion that C.'s enlistment was not binding on him.

As, however, C. attained the age of twenty-one years on 25 May 1921, his father is not now entitled to interfere in the matter, although C. himself is, in my opinion, entitled to repudiate the enlistment within a reasonable time of his coming of age.

[Vol. 17, p. 349]