COMMITTEE. (Hansard, 21 April 1885)

§ LORD FITZGERALD
, in moving "That the House do now resolve itself into Committee," said, that Notice had been given of an Amendment by the noble Earl opposite (Earl Beauchamp) which went to the root and principle of the Bill; and if the Amendment were carried, he should consider it his duty to abandon the Bill. The principle of the Amendment ought really to have been discussed on the second reading of the Bill. The object of the Bill, which had its origin in the other House, was to amend the Common Law which gave the father of a family absolute control over his children to the exclusion of the mother. Under the law great cruelties had been practised and great hardships suffered. The Bill declared that in certain circumstances the mother should be guardian or joint guardian. It had had been erroneously supposed that the 297 late Earl Cairns was an opponent of the Bill; but he was not. Earl Cairns said that it would interfere largely with social relations, and that the details could not be settled satisfactorily except by a Select Committee; and the Bill had been carefully considered and amended by a Select Committee. The Bill of last year was supported in the other House by the Law Officers of the Crown, the Lord Advocate, Mr. Horace Davey, Mr. Bryce, and 17 Members of the Government. It was opposed by Lord Randolph Churchill and Sir R. Assheton Cross. The present Bill differed in some particulars from that of last year; but its leading principle was to confer upon the mother the right to which she was morally and inherently entitled of appointing guardians for her children in case she survived her husband. Some objection had been taken to the proposal to give jurisdiction in these questions of guardianship to the County Courts. It was said that questions of great delicacy and difficulty might arise unfit for such a tribunal to adjudicate. But he thought it was impossible for any injustice or inconvenience to arise, inasmuch as either party was entitled, without assigning any reason, to require the transfer of the matter to the Chancery Division of the High Court. The Amendment swept away the whole principle of the measure, and if it were carried, he should abandon the Bill.

§ EARL BEAUCHAMP
said, that the Bill entirely overlooked the interest of the children, which was sacrificed to the sentiment on behalf of the mother. Nothing could be more injurious to the welfare of the children than a divided guardianship, and the law of England had not been unwise in throwing upon the father the entire responsibility of bringing up the children. The mother had not equal rights in the matter with the father. There was no reference in the Bill to the case of the mother remarrying. It was important to remember that, as the father was the head of the family, the mother, on a second marriage, became part of her second husband's family. Then there was no provision for divorced persons, and a divorced woman, whose children had been placed by the Court under the 298 protection of the husband, would still, under the Bill, be entitled on the father's death to the guardianship of the children. If their Lordships passed this Bill, they would be introducing a principle which involved the utmost confusion in our families. The Bill would introduce discord between husband and wife, it would place women in a position of equality with men which by nature they did not possess, and it would open out sources of the gravest disaster in order to meet some exceptional cases which certainly had not been laid before their Lordships. All cases of litigation were cases of difficulty and doubt. What their Lordships had to consider was how our existing law affected our English homes in our every-day life. In his opinion, that law was for the benefit of the children. He did not deny that there were exceptions to the general rule; but for the sake of exceptions which were limited in number, and for which the proposed remedy was exceedingly doubtful, they had no right to upset the principles regulating the relations of a father towards his children. Perhaps he might be told that a Select Committee had carefully considered the Bill; but really this question was one not so much for the consideration of lawyers as for the consideration of fathers of families. The Select Committee did not pay so much respect to the interests, the position, and the duties of fathers of families as they did to the somewhat exaggerated and hysterical view of the case which had been made out for mothers as against fathers. He thought he had now shown that the Bill itself was full of dangerous matter. He quite admitted, however, that there was one point in which the law might be amended with safety. As the law at present stood, the mother did not become guardian of the children if the father made no appointment at all. He thought there could be no doubt that when the guardian nominated by the father was dead, or if the father waived his paternal rights, it was right and proper that the mother should become the guardian of the children. This was one reason why he had hesitated to move the rejection of the Bill; but he thought he had shown that the measure would introduce novel and dangerous principles into our legislation, and therefore he intended to move, in Com- 299 mittee, the Amendments of which he had given Notice.

§ THE LORD CHANCELLOR
remarked, that if the noble Earl's speech were of any value at all, it did not stop short of the total rejection of the Bill. He had listened to that speech with much regret, because it showed that his noble Friend had not a just appreciation of the legitimate claims and rights of the mothers of this country, and of the scandalous state of the law, which at present entirely ignored them. He had hardly expected to be so soon reminded of the enormous and irreparable loss which that House had sustained in the death of Lord Cairns. The noble Earl had spoken of the Select Committee as if it had been composed of men who approached this question with the feelings of lawyers only. Some of those who sat on that Committee, including himself, might accept such censure; though lawyers, as well as others, were husbands and fathers, and, if influenced at all by professional prejudices, were not likely to be so in the direction of change. But was there a man in that House who would say that Lord Cairns had not considered the question with a mind open to broad and generous views of the rights and interests of fathers and children? He would now make a few observations on the criticisms of his noble Friend. In the first place, there was not in the Bill a single word which interfered with the rights of a father. He denied that a father, after he was dead, was capable of discharging the duties of guardian of his child, and he also denied that any person whom the father might put in his place could possibly succeed to the father's position and to his natural rights, however earnestly he might desire to discharge the duties intrusted to him. The objection of a divided authority had been raised; but surely such an objection would have no validity, because the Bill introduced no change of principle in that respect. As things were now, more guardians than were might be appointed by the father, and the authority might be divided between them. In the event of a disagreement between the guardians, the Bill provided that the Court might be appealed to, and would make such order as might appear to promote the welfare of the children. In his opinion, the welfare of the children was intimately bound up 300 with their relations to their parents, and the law, at all events, had enough of humanity in it to treat the mother as a child's guardian, when there was no other. And what was the title it gave her? The language of the law was "guardian by nature and nurture." He thought it would be a very unfortunate day for their Lordships' House on which such a Bill as this were rejected on such grounds as had been urged against it.

LORD ORANMORE AND BROWNE
expressed his fear that the Bill would give rise to a large amount of litigation, which, as their Lordships knew, meant ruin to the purse and continued hostility between the parties concerned. The Bill would, in fact, bring about a totally new state of society. The domestic habits and relations in this country were as good if not better than in any other part of the world. The onus probandi of the existence of the evils which this Bill was intended to remedy lay with those who were responsible for the Bill, and yet the noble and learned Lord in charge of the measure had not cited any cases of cruelty which did not come under the law as it is at present, and therefore showed no good cause for new legislation.

LORD INCHIQUIN
said, he objected strongly to that clause of the Bill which empowered a mother to appoint a testamentary guardian to act jointly with the father. If a father should object to being associated with a guardian of that kind, he would be compelled to prove before the Court of Chancery his fitness to have the sole charge of his own children.

LORD ELLENBOROUGH
thought it would be a great mistake to refer questions of such extreme delicacy as those connected with the custody of children to County Court Judges. He, therefore, on that ground alone, would be prepared to support the rejection of the Bill, if it should be moved, on the third reading.

§ THE LORD CHANCELLOR
said, that the exact point involved in the Amendment was that though there might have been a divorce through the husband's fault, and though the children might be in the wife's care during their father's lifetime on account of his misconduct, he might by will appoint a guardian who was to supersede the mother.