HC Deb 16 April 1886 vol 304 cc1867-77

Bill considered in Committee.

(In the Committee.)

Clause 1 (Short title) agreed to.

Clause 2 (On death of father, mother to be guardian alone or jointly with others).

MR. DONALD CRAWFORD (Lanark, N.E.)

, in moving, as an Amendment, in page 1, line 9, after the words "on the death of the father of an infant," to insert— And in case the father shall have died prior to the passing of this Act, then from and after the passing of this Act, said: The clause as it stands applies only to cases in which the father happens to die after the passing of the measure, and the Amendment which I propose will make it retrospective. That will be in perfect harmony with the leading principle of the Bill. The mother, if a widow, would at once become the guardian of the children, either alone, when no guardian has been appointed, or jointly with any guardian appointed by the father. I need hardly say that there a very large number of cases to which the Amendment would apply—cases in which the father is dead already. It may be objected that this is retrospective legislation; but I should like to explain very shortly to the Committee that in reality this is not retrospective legislation in the ordinary acceptation of the term, because if that term could on any principle be applied to the proposal I make, nevertheless the proposal itself is not objectionable on the ground on which ex pod facto legislation is usually regarded as objectionable, inasmuch as there are no existing arrangements which could possibly be upset, and which, having been made upon the faith of the existing law, it would not be right or fair to change. Wherever an arrangement has been entered into or an interest created, that arrangement or interest would stand. For example, if a deed has been executed in accordance with the due solemnities prescribed by law before the decease of the father, it would neither be right, fair, nor just in the interest of the parties claiming under such deed that other solemnities imposed by the law should affect the validity of the deed. I would, however, point out to the Committee that no such case could arise under this Amendment, because there is no person whose interests can be legitimately affected by making the mother the guardian of her children. The only true interest to be looked to is the interest of the infant itself, and that interest is just as strong in the case of children who have already lost their father as in the case of children whose father dies afterwards. It cannot be said that if the change in the law now proposed had been made, that anybody would have acted otherwise than he will act under the altered state of the law. It cannot be said that if a father had known that his widow would be appointed guardian of his child he would not have died at all. That would not be in his power, and really I can see no other objection to the change which I propose. The Amendment would not make the legislation retrospective, and I trust my right hon. and learned Friend will not offer any objection to my proposition.

Amendment proposed, In page 1, line 9, after "infant," insert "and in case the father shall have died prior to the passing of this Act, then from and after the passing of this Act."—(Mr. Donald Crawford.)

Question proposed, "That those words be there inserted."

THE LORD ADVOCATE (Mr. J. B. BALFOUR) (&c.) Clackmannan,

I think the Amendment of the hon. Member would be a great improvement to the Bill. It would affect no paternal interest or right.

MR. TOMLINSON (Preston)

I think this is a matter on which the Committee should receive a little more information than has been given. We can understand that the alteration is more requisite with regard to Scotland than England; but it is a serious thing to introduce what is, after all, retrospective matter, and I am not disposed to assent to the Amendment.

Question put, and agreed to; words inserted.

MR. TOMLINSON (Preston)

I think the object of the Amendment I am about to move will be clear to the Committee. Of course, when we refer to anything of the neuter gender we use the form of pronoun which corresponds. But when the Committee consider that the word "it," which is used sometimes with regard to young children, will, in this Act, apply to young persons nearly 21 years of age, I think hon. Members will see that the expression is hardly appropriate to the clause. I therefore propose to use the masculine term, which includes, in these cases, the feminine.

Amendment proposed, in page 1, line 10, to leave out "its," and insert "his."—(Mr. Tomlinson.)

Question proposed, "That the word 'its' stand part of the Clause."

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIRS (Mr. BRYCE) (Aberdeen, S.)

I am not myself sure that the word which the hon. Member proposes to strike out is the best that can be used, and I suggest that the Amendment should be withdrawn, and then I will move to add the word "the," which I think will get rid of the difficulty.

Amendment, by leave, withdrawn.

Amendment proposed, in page 1, line 10, to leave out "its" and insert "the."—(Mr. Bryce.)

Question, "That the word 'its' stand part of the Clause," put, and negatived.

Question, "That the word 'the' be there inserted," put, and agreed to.

MR. INCE (Islington, E.)

The Amendment I am about to move will make the clause run thus— On the death of the father of an infant the mother, if surviving, shall be the guardian, and in such case any appointment by the father, by will or otherwise, under the Act twelfth Charles the Second, chapter twenty-four, or in Ireland under the Act of the Irish Parliament fourteenth and fifteenth Charles the Second, chapter nineteen, or otherwise shall be of no effect. The object of that Amendment is to carry out the view which I have always entertained with reference to this Bill, that there should be no double control either of children or of families; that the father, in his lifetime, should have the guiding and controlling hand, and that when either parent is dead the survivor should be the guardian of the children. I suppose that hon. Members who really wish to see women placed on the same, or perhaps a little stronger, footing with men, will be willing to accept this Amendment. It is said that perhaps the mother may marry again, and it would be inconvenient that she should be guardian under the circumstances. Well, Sir, I do not wish to say anything against the weaker part of humanity. As far as my experience goes, I should say that the mother surviving is often more capable of taking care of the children than the father surviving who marries again. I would rather trust any children to their mother under the circumstances of a second marriage than I would to a stepmother. Therefore, I think that, as far as second marriage goes, there is more reason for allowing the mother to be guardian than there is in the case of the father. The other objection which I have heard stated is that the mother may be an improper person, and that, therefore, it is desirable that the father should have power to appoint a guardian. But then, again, the father may be an improper person—we have heard of such things before now. But there is reasonable protection against that objection in the clause of the Bill which allows the Court to interfere. Under the circumstances, I ask the Committee to assent to this Amendment, because I believe, if we are to deal with this subject at all, we had better do so effectually.

Amendment proposed, In page 1, line 10, leave out all after "guardian" to the end of the Clause, and insert "and in such case any appointment by the father, by will or otherwise, under the Act twelfth Charles the Second, chapter twenty-four, or in Ireland, under the Act of the Irish Parliament fourteenth and fifteenth Charles the Second, chapter nineteen or otherwise, shall be of no effect."—(Mr. Ince.)

MR. GREGORY (Sussex, East Grinstead)

I hope the Government are not prepared to accept this Amendment. It always appears to me that the mother requires generally more support or more control under the circumstances than the father—she is very apt to give way.

Amendment negatived.

MR. DONALD CRAWFORD (Lanark, N.E.)

The clause proposes that the Court may, from time to time, appoint a guardian or guardians to act jointly with the mother. Now, the word "may" in an Act of Parliament is sometimes very nearly equivalent to "shall;" and, as that is not the intention of this clause, I beg to move the addition of words which will make it clear what that intention is.

Amendment proposed, in page 1, line 14, after "may" insert "if it shall think fit."—(Mr. Donald Crawford.)

Question proposed, "That those words be there inserted."

MR. TOMLINSON (Preston)

I do not think that anyone would maintain that "may," in this case, means "must;" and, therefore, I do not consider that the clause at all stands in need of the words which the hon. Member proposes to introduce.

THE LORD ADVOCATE (Mr. J. B. BALFOUR) (&c.) Clackmannan,

I must say that I hardly expect to meet with any public act in which "may" means "must." Still, the question might arise, and it might be supposed that the word implied the duty of the Court. My hon. Friend proposes to obviate that by agreeing to the Amendment.

Question put, and agreed to.

Clause, as amended, agreed to.

Clause 3 (Mother may appoint guardian, certain cases).

MR. TOMLINSON (Preston)

I propose to leave out the words "deed or," and I do so by way of challenging an explanation of the clause. The clause provides that the mother of an infant, "by deed or will," may appoint a person to its guardianship, and that seems to me a very strong measure to allow. You must remember that these deeds in ordinary cases would be irrevocable, and that the appointment may be made during the lifetime of the woman's own husband. That is carrying the thing rather too far. No doubt it will be right to allow it to be done by will.

Amendment proposed, to omit the words "deed or."—(Mr. Tomlinson.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIRS (Mr. BRYCE) (Aberdeen, S.)

The words of this clause were carefully considered when the Bill was before the House on a previous occasion; and it was felt that it would be an advantage to give the mother power to do this in both ways. The hon. Member will be aware that by testamentary instrument a deed of this kind could be revoked.

MR. TOMLINSON

I cannot understand the doctrine that a testamentary instrument can revoke a deed. Generally in this country a deed is irrevocable. But I desire to put this to the Committee. Is there any reason for giving a mother power to appoint a guardian by deed? I cannot see any. Rights may be given to her in her marriage settlement no doubt, and rights may be given to her by will; but is a mother able to say what is going to happen after her death. It seems to me the proper way to do this thing is to confine the matter to the will, striking out the deed. If I get any support I shall certainly persevere with my Amendment.

MR. WESTLAKE (Essex, Romford)

According to the present law, the father of an infant has power to appoint a guardian by will or deed, and no inconvenience has arisen from his having that power. Therefore, I do not see anything unreasonable in this proposal, especially as the Bill tends to assimilate the positions of the father and mother.

MR. RAIKES (Cambridge University)

The hon. and learned Gentleman who has just spoken assumes an absolute equality between the father and mother in this matter. I do not read the Bill in that sense. As I understand it, the Amendment introduced into the Bill in the other House last year is one which practically gives to the mother the conditional right of making an appointment—of making that which is, in point of fact, a provisional appointment. I would ask whether the words of this clause, giving power to make this appointment by deed, do not give an unconditional power, which, as I understand it, the Bill, as at present drawn, is not intended to give? I should like to hear from the author of the Bill some repudiation of the doctrine that has been laid down by the hon. Member, otherwise the Committee would do well to support the Amendment.

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIRS (Mr. BRYCE) (Aberdeen, S.)

The right hon. Gentleman is quite right in supposing that this Bill does not give anything like equality. It favours the father throughout in almost every clause.

MR. TOMLINSON

I think this is an important point. The instruction which some of us received years ago in the principles of law rather tended in this matter to the view that it is not always an advantage to have a guardian appointed by deed. A woman is supposed to be, and in fact ought to be, under the influence of her husband to a great extent; and it is possible that, in many cases, it might be desirable that certain persons should be appointed guardians to take the care of an infant in the event of the death of the wife. Supposing a wife were induced to make an irrevocable appointment by deed—[Mr. BRYCE: It is not irrevocable.] It generally is irrevocable.

MR. J. P. B. ROBERTSON (Bute)

This Bill is intended to apply to Scotland; and I would point out that if deed means something different to will or testamentary writing, in the respect that it is in all its parts irrevocable, the use of the word in the measure will introduce into the law of Scotland something entirely new in favour of the nominee of the mother. At present, according to Scotch law, the thing must be done by testamentary writing. If "deed" means something different, and if that is to be introduced into the law, it gives something as to the mother which does not exist as to the father.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 4 (Powers of guardian) agreed to.

Clause 5 (Court may make orders as to custody).

MR. EDWARDS-MOSS (Lancashire, S.W., Widnes)

I beg to move in page 2, line 14, after "infant," to insert "and the right of access thereto of either parent." I suppose that the question of the custody of any infant will arise chiefly, if not only, in a case in which the parents are unfortunately living apart from each other. I think that when an order is made under this clause, giving the custody of an infant to one parent, the Court should be specially authorized to make such order as it may think fit for the other parent to have reasonable opportunity for seeing the child. I am quite sure that where such estrangement between the parents is the result, not of any grave delinquency, but of some lamentable and serious misunderstanding, it would not be the wish of the Government to exclude the mother from the right of seeing and conversing with her own child.

Amendment proposed, in page 2, line 14, after "infant," insert "and the right of access thereto of either parent."—(Mr. Edwards-Moss.)

Question proposed, "That those words be there inserted."

MR. J. H. A. MACDONALD (Edinburgh and St. Andrew's Universities)

I would support the insertion of these words in this clause. They are practically the law of Scotland at the present moment; and I am able to say, from my own experience, that the possession by the Court of such a power as this sometimes has the best possible effect, leading not infrequently to the reconciliation of parents who, if left to wrangle over the question of access to their children, would probably go on wrangling to the end of their days. In such cases we sometimes find that where the Court intervenes and gives reasonable opportunities of access happy conclusions are very frequently brought about.

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIES (Mr. BRYCE) (Aberdeen, S.)

I am not quite certain that the Amendment is necessary, because I rather think that the order regarding the custody of an infant would deal with the question of the right of access. At the same time, we are much obliged to the hon. Member (Mr. Edwards-Moss) for calling our attention to this point, and for proposing words which will put the matter beyond doubt. I have much pleasure in accepting the Amendment.

MR. TOMLINSON (Preston)

I really think we ought, where we can, to avoid putting unnecessary words in the Act. I appeal to the experience of anyone who knows anything about the custody of children, whether it is not customary for the Court of Chancery to make provision for access to children? It is a common thing to do that in every order.

Question put, and agreed to.

Clause, as amended, agreed to.

Remaining Clauses agreed to.

MR. INCE (Islington, E.)

I beg to move the insertion of the following new clause:— In any case where a decree for judicial separation, or a decree either nisi or absolute for divorce, shall be pronounced, the Court pronouncing such decree may thereby declare the parent by reason of whose misconduct such decree is made a person unfit to have the custody of the children (if any) of the marriage; and in such case, the parent so pronounced to be unfit shall, if he or she shall survive the other parent, have no right to the custody or guardianship of such children, either under this Act or otherwise, and shall not possess, or be capable of exercising, any of the powers or rights by this Act conferred on a surviving parent. The object of the clause is to provide for a case which might arise if this Bill became law—a case where there has been a judicial separation, or a decree for a divorce. Supposing such a decree given, the Court of Divorce would have the custody of the children on behalf of the innocent parent; but on the death of that innocent parent the rights of the surviving parent would again come into force. The Court, on pronouncing a decree, may, if it thinks fit—for it is not binding—declare the person by reason of whose misconduct the decree is made to be an unfit person to have the custody of the children. If that is put in the decree, as it will be only in bad cases, then, on the death of the innocent father or mother, as the case may be, the advantages given by this Act would not devolve upon those who should not have them.

New clause (Guardianship in case of divorce or judicial separation,)—(Mr. Ince,)—brought up, and read the first time.

Motion made, and Question proposed, "That the Clause be read a second time."

THE LORD ADVOCATE (Mr. J. B. BALFOUR) (&c.) Clackmannan,

I do not object to the clause being read a second time; but I would venture to point out that the latter part of it would have a result which I can hardly suppose the hon. and learned Member intends. The first part would be consistent with the Act; but, under the latter part, such a degree of unfitness would not only apply to persons declared unfit to any statutory right or rights given for the first time by this Act, but would fix a permanent disability on that person, who might be the father, for the exercise of the guardianship that he would have as a father under the ordinary law. You might have a case where the wife dies, and because of his having been guilty of some matrimonial offence the father may have lost the right of custody of his children, which may be given by the wife to somebody else. Such a man may have become quite respectable, and yet the clause as it stands will deprive him permanently of any right of guardianship over his children. I would suggest to the hon. and learned Gentleman that all he can desire would be effected by stopping at the words, "guardianship of such children under this Act," leaving out the word "either" and the words— Or otherwise, and shall not possess, or be capable of exercising, any of the powers or rights by this Act conferred on a surviving parent. It seems to me that the clause as it stands would go further than the hon. and learned Member intends.

MR. INCE

The clause, as it stands, embodies my intention, and the intention of those persons on whose suggestion I drew it up. If the parent is unfit to have the benefits of this Act, surely he will be unfit to have the benefits of any other right under the Common Law. Why should he be deprived of these modern benefits, and not be deprived of similar benefits that already exist under similar statutes? You would take them away from the mother if she does wrong, but would leave them with the father under older statutes to be carried into effect by him if he does wrong. I must say I prefer the clause as it stands.

SIR R. ASSHETON CROSS (Lancashire, S.W., Newton)

I wish to ask the Lord Advocate, or the hon. Member who has charge of the Bill, a question as to this matter of misconduct or unfitness. I can quite understand that adultery on the part of the woman, or cruelty and adultery on the part of the man, would be sufficient ground for interference; but suppose a case of judicial separation, or of desertion only. Would it not be well to provide some safeguards, in order to show that it is only for certain real crimes, such as cruelty or adultery, that a parent ought to be deprived of the guardianship of the children?

THE LORD ADVOCATE

I think the misconduct should be such as to render the person unfit to have the guardianship of the children. But I only intended the clause to be read a second time, and then I will move an Amendment upon it.

Question put, and agreed to.

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIES (Mr. BRYCE) (Aberdeen, S.)

I suggest that the word "declared" in line 6 of the clause should be substituted for the word "pronounced."

Amendment proposed, in new Clause, line 6, leave out "pronounced," in order to insert "declared."—(Mr. Bryce.)

Question, "That the word 'pronounced' stand part of the Clause," put, and negatived.

Question, "That the word 'declared' be there inserted," put, and agreed to.

Amendment proposed, in new Clause, line 7, leave out the word "either."—(The Lord Advocate.)

Question, "That the word 'either' stand part of the Clause," put, and negatived.

Amendment proposed, in new Clause, leave out all the words after "Act" in line 8.—(The Lord Advocate.)

Question, "That the words proposed to be left out stand part of the Clause," put, and negatived.

Question, "That the Clause, as amended, be added to the Bill," put, and agreed to.

Bill reported; as amended, to be considered upon Monday next.