SECOND READING. (Hansard, 24 March 1873)

§ LORD CHELMSFORD,

in moving that the Bill be now read the second time, said, the object of the measure, which had come up from the Commons, was to extend the power of the Court of Chancery with regard to the custody of infants in cases where differences existed between the parents, and the family home had been broken up. Before 1839 the position of a wife, driven from her home and compelled to separate herself from her husband by reason of his misconduct, was very miserable; because she might have been deprived of all access to her infant children and from all intercourse with them. By an Act passed in that year, which was known as Talfourd's Act, that position was slightly alleviated. Talfourd's Act empowered the Court of Chancery not only to give the mother access to her children, but also to order them to be delivered up to her and remain in her custody till they were seven years old; but with regard to children above that age there was very little mitigation of the state of things existing previously to 1839. The position of a wife separated from her husband was. rendered still more distressing in consequence of the manner in which the Court of Chancery dealt with separation deeds. At the present moment, by cruelty and 5 adultery the husband might drive the wife from her home, and she, to avoid the scandal arising from proceedings in the Divorce Court, might agree to a deed of separation. This deed might contain a clause giving the children to the mother; but if so, the deed was not in the slightest degree binding, because if the husband did not choose to be bound by it, and refused to give her the children, and if she appealed to the Court of Chancery for its interpretation, the Court must refuse its aid on the ground that it was contrary to public policy for the husband to relinquish his duty in the care and management of his children. If the conduct of the husband had been so gross that in the opinion of the Court he was not a fit person to have the custody of his children the Court, might by means of a clause in the separation deed hand them over to the wife; but before the Court would take that step it must be proved to its satisfaction that the conduct of the husband had been so gross that the removal of the children was positively necessary in their own interests. No cruelty to the wife, and no adultery, except it were committed in the home of the children, would induce the Court of Chancery to enforce a separation deed of that kind. This nap of the Court had consequently the effect of preventing that which was so frequently sought—a private arrangement where by the scandal of publicity was avoided. The Divorce Court had assumed the power of directing, in the case of a judicial separation, in the custody of which parent the children should remain; but no judicious adviser would counsel a wife to resort to the Divorce Court if a proper arrangement for herself and her children could be come to without recourse being had to such a step. The late Lord Penzance had stated a very strong opinion in favour of private deeds rather than Court orders for the separation of a husband and wife who had differences. There was another reason why private arrangements should be favoured—that private deeds left the door open for reconciliation, while proceedings in the Divorce Court completely closed it. The main clauses of this Bill were only two in number. The first empowered the Court of Chancery to order the wife access to and the custody of infants under 16 years old. That age was mentioned because it was the one at which 6 in this country children had the legal right of choosing their own guardians. The second clause provided that no deed of separation was to be held invalid by reason of its containing a provision that the father shall give up the custody and control of the children to the mother; but there was a proviso that the Court need not enforce such a provision if it should be of opinion that it would not be for the benefit of the children to give effect to it. The third clause enacted that nothing contained in the Bill should render valid any agreement by the father to give up the custody of the children on condition of any pecuniary consideration to be paid to the father. He proposed to strike out that clause as unnecessary, seeing the power that was to be given to the Court of Chancery by the other clauses. Some persons were anxious to have this Bill extended to Scotland; but that could not be done, the law as regards infancy being quite different in Scotland from what it was in this country. In Scotland a child of 14 years old might choose its own guardian.