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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ward v Byham [1956] EWCA Civ 1 (16 January 1956) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1956/1.html Cite as: [1956] 2 All ER 318, [1956] 1 WLR 496, [1956] EWCA Civ 1, [1956] WLR 496

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IN THE SUPREME COURT OF JUDICATURE.
COURT OF APPEAL.

		Royal Courts of Justice.
		16th January 1956.

LORD JUSTICE DENNING: We need not trouble you, Mr. Skinner.

This is a claim for the sum of £1 a week in respect of the maintenance of a bastard child. The father and mother lived together unmarried for four or five years, from 1949 until May, 1954, and a little girl was born of that union on 26th October, 1950. whilst the father and mother were living together, the father went out to work and maintained the household. But in May, 1954, the father turned the mother out. He put the child into the care of a neighbour and paid the neighbour £1 a week. The mother meanwhile found work as a housekeeper to a man who was ready to let the child come too. The mother wanted the child with her, and she wrote a letter to the father asking for Carol, the child, and £1 a week for her maintenance, which was the sum which the father had been paying the neighbour. We have not got a copy of the letter which the mother wrote, but we have the father's reply, which is the basis of this action. It is dated 27th July, 1954, and says:

"Mildred, I am prepared to let you have Carol and pay you up to £1 per week allowance for her providing you can prove that she will be well looked after and happy and also that she is allowed to decide for herself whether or not she wishes to come and live with you. She is well and happy and looking much stronger than ever before. If you decide what to do let me know as soon as possible".

On receiving that letter the mother went to see the father, and it was agreed that she could have the child. She took the child with her, and the child has lived with the mother ever since.

In February, 1955, some seven months later, the mother married the man to whom she had been acting as housekeeper; and a few weeks later the father himself married. The father kept up the payments of £1 a week until the mother married, but after that he stopped.

I look upon the father's letter as dealing with two things. One is the handing over of Carol to the mother. The father agrees to let the mother have the child provided that the child herself wishes to come and provided also that the mother satisfies the father that she will be well looked after and happy. The other thing is the future maintenance of the child. The father promises to pay the mother up to £1 per week so long as the mother looks after the child.

The mother now brings this action, claiming that the father should pay her £l per week, even though she herself has married. The only point taken before us in answer to the claim is that it is said that there was no consideration for the premise by the father to pay £1 a week: because the mother, when she looked after the child, was only doing that which she was legally bound to do, and that is no consideration in law. In support of this proposition, reliance was placed on a statement thrown out by Baron Parke in the course of argument in Crowhurst v. Laverack (reported in 8 Exchequer, page 208) at page 213.

It is quite clear that by statute the mother of an illegitimate child is bound to maintain it: whereas the father is under no such obligation. (see Section 42 of the National Assistance Act, 1948.) The mother can, of course, if she is a single woman apply to the magistrates for an affiliation order against the father: and it might be thought that in this case consideration could be found by holding that, the mother must be taken to have agreed not to bring affiliation proceedings against the father. But the mother in her evidence said that she never at any time had any intention of bringing affiliation proceedings. It is now too late; for her to bring them, because she has married and is no longer a single woman.

I approach the case therefore on the footing that the mother, in looking after the child, is only doing what she is legally bound to do. Even so, I think that there was sufficient consideration to support the promise. I have always thought that a promise to perform an existing duty, or the performance of it, should be regarded as good consideration, because it is a benefit to the person to whom it is given. Take this very case. It is as much a benefit for the father to have the child looked after by the mother as by a neighbour. If he gets the benefit for which he stipulated,, he ought to honour his promise; and he ought not to avoid it by saying that the mother was herself under a duty to maintain the child.

I regard the father's promise in this case as what Is sometimes called a unilateral contract, a promise in return for an act, a promise by the father to pay £1 a week in return for the mother's looking after the child. Once the mother embarked on the task of looking after the child, there was a binding contract. So long as she looked after the child, she would be entitled to £1 a week. The case seems to me to be within the decision of Hicks & Gregory (reported in 8 Common Bench Reports at page 379 (1849) 8 CB 378 ) on which the judge relied. I would dismiss the appeal.

LORD JUSTICE MORRIS: I agree. I think that the letter of 27th July, 1954, shows that there was consideration for the agreement and promise of the father. After, the mother was made to leave the home in May, 1954, the child in fact stayed with the father until July. The terms of the father's letter of 27th July suggest that he was animated by a concern for the well-being of the child. The phrases that he uses are, I think, evidence of that. When the mother asked for the child, the answer was in the terms of the letter. Mr. Lane submits that there was a duty on the mother to support the child, that no affiliation proceedings were in prospect or were contemplated and that the effect of the arrangement that followed the letter was that the father was merely agreeing to pay a bounty to the mother.

It seems to me that the terms of the letter negative those submissions, for the husband says "providing you can prove that she" - that is Carol - " will be well looked after and happy and also that she is allowed to decide for herself whether or not she wishes to come and live with you". The father goes on to say that Carol is then well and happy and looking much stronger than ever before. "If you decide what to do let me know as soon as possible". it seems to me, therefore, that the father was saying, in effect: irrespective of what may be the strict legal position, what I am asking is that you shall prove that Carol will be well looked after and happy, and also that you must agree that Carol is to be allowed to decide for herself whether or not she wishes to come and live with you. If those conditions were fulfilled the father was agreeable to pay. Upon those terms, which in fact became operative, the father agreed to pay £1 a week. in my judgment, there was ample consideration there to be found for his promise, which I think was binding.

LORD JUSTICE PARKER: I have come to the same conclusion. I think that the letter of the 27th July, 1954, clearly expresses good consideration for the bargain, and for myself I am content to adopt the very careful judgment of the learned county court judge.

(Appeal dismissed with costs).