ABSTRACT
This chapter traces the principle’s origins back to an era characterised by the fusion of both sectors in the law of feudal England. The feudal system being predicated on territory, entailing the loyalty and knight service of the major landowners, gave particular attention to the protection of infant successors. The law of guardianship in socage “was settled at any early period with some regard for the welfare of the ward himself”. Prior to the 18th century, the welfare doctrine took the form of a duty placed upon parents /guardians and enforced by the feudal institutions recognised by the law. The common law respect for paternal authority was itself a legacy from Roman times founded on the doctrine of patria potestas. Paternal authority had evolved in consequence of the inadequacies of the feudal common law. The relationship between parents, their children and criminal activity was relatively uncomplicated under common law.
