AV Winslow J:

This is an appeal against the decision of a Judge who, having, in open Court, granted a decree nisi in September 1973 to the appellant/wife on the ground of her husband's cruelty on an uncontested divorce petition, made an order in February 1974 in chambers for the custody of their only child, a boy aged six, at the time, to be given to the guilty respondent/husband. A prior order for access to the wife during weekends had already been made in May 1973 before the hearing of the petition as the child was then under the respondent's physical control.

Whilst no complaint was made of the correctness of the principles enunciated by the Judge in considering whether or not he should make an order for custody in favour of the father, it is the actual application of these principles to the facts of the case which Counsel for the appellant contended was wrong - in that the welfare of the child which was the first and paramount though not the only consideration did not merit an order for such custody to be vested in the guilty respondent.

The Judge took into account the fact that the appellant was not working and had no income, that the boy had for most of the time been in the respondent's custody and was being looked after by the respondent's mother, that any change in custody would affect the child adversely insofar as its future happiness, sense of security and material welfare were concerned and that the respondent was in a better financial position to bring him up and give him a good education. He accordingly granted custody to the respondent.

It seemed to us however that a dispute existed as to the true reason for the boy's having been for most of the time in the respondent's physical custody albeit through his mother. It was not disputed that the respondent had been guilty of cruelty towards the petitioner, and that, not long after his assault on her for which he was convicted in August 1972, she left him quite understandably to go and live with her mother.

The appellant contended that she had all along been willing to bring up the child herself but that the respondent frustrated her wishes and insisted on its being brought up by his own mother as opposed to hers and also opposed her wishes in the matter of domestic help which she was anxious to engage to enable her to bring up the child.

Having regard to this and other matters in dispute and the reasons given by the Judge for making the order which he did, it did not seem to us that an order for custody in favour of the father was justified in all the circumstances as revealed by the record. It was clear from the Judge's reasons that he equated 'custody' with 'care and control' of the child, or at least regarded these expressions as synonymous whereas it seemed to us that 'care and control' was only a constituent element of custody.

A line of English authorities from as far back as 1886 has established that split orders can be made so as to give custody to one parent and care and control to the other. Where the parents are unimpeachable in respect of their characters, conduct and capacity to cooperate in caring for the welfare of the child, even orders for joint custody can be made - see J v. C [1970] AC 668 and Jussa v. Jussa [1972] 2 All ER 600. It should also be noted, that s. 3 and 5 of our Guardianship of Infants Act (Cap. 22, 1970 Edn.) follow the lines of corresponding provisions in the United Kingdom - see Re W (JC) [1963] 3 All ER 459 and Re F [1969] 2 All ER 766 which throw further light on the making of split orders after a consideration of such provisions.

Re W (JC), supra, makes it clear that it has become common practice in England to make split orders.

Lord Denning LJ in Wakeham v. Wakeham [1954] 1 All ER 434 approved of such orders as being realistic.

Section 113 of our Women's Charter (Cap. 47, 1970 Edn.) giving the High Court power to make such provision as it thinks fit with respect to the custody, maintenance and education of ch