GUARDIANSHIP, ETC., OF INFANTS BILL. [H.L.] (Hansard, 1 March 1922)

§ LORD ASKWITH
My Lords, the Bill for which I desire to ask a Second Reading at your Lordships' hands is entitled: "An Act to amend the Law relating to the guardianship, maintenance, custody and marriage of infants." It is a rather long title, and the Bill is rather long. In some points it seems to be highly technical, but when you come to consider its principles it really resolves itself into a comparatively simple one. The idea of the Bill is, firstly that there should be as between the parents greater equality of authority, rights, and responsibility with regard to their children; secondly, that the maintenance of the children should be better assured; and, thirdly, that the effecting of that maintenance should be improved by the strengthening of machinery by which maintenance can be obtained.
The law, as it stands at present, I apprehend to be that the father has the sole right of deciding where the child shall live, the bringing up of the child and the custody of the child, and may take it away, even though the mother may object, in certain circumstances—the law which proceeds upon the presumption, handed down from very ancient days, of the father's power over the child. That law is mitigated in England by the Statute of 1886. Since that year a good deal has happened with regard to the policy in this country governing the relations and powers of men and women. Although for that reason alone I should not introduce this Bill, yet I have persuaded myself that it would be of considerable advantage to many children in this country, and I commend it to your Lordships.
Clauses 3 and 6 deal with the joint authority of the father and mother. The Act of 1886 provided that the father alone 251 should have power over the child, but Clause 3 of this Bill proposes that— The father and mother of every legitimate infant shall for all purposes be the joint guardians, and shall, subject as hereinafter enacted, have the joint custody of such infant and have equal authority, rights, and responsibility with regard to such infant, any rule of law or equity heretofore in force to the contrary notwithstanding. Clause 6 is a long clause dealing with the methods of appointing guardians and is largely an adaptation of two sections in the Act of 1886. It provides that if the parents disagree, or if there is difficulty over the custody and conduct of the child's life, through the parting of the parents, the Court can come in and decide between them. In addition, the mother would have the same power of appointing a guardian at law after her death, or in the event of a child requiring a guardian, as the father now has. At the present time the mother has not that power. Those are the two chief clauses dealing with the guardianship of children.
There are several clauses dealing with maintenance, notably Clause 4, to which I may make brief allusion. Clause 4 says that,— The father and the mother of every legitimate infant shall be jointly and severally liable for the cost of the maintenance and education of such infant according to the means of such father and mother respectively. and, at the end of the clause, it is proposed that this authority against the father and the mother according to their means shall operate against "the heirs, executors or administrators of any deceased father or mother."
Clause 5 (b) gives power to the Court to order, for the maintenance or education of the child, that any sums under trust may be paid "to the person to whose care the infant is committed." Clause 5 (d) provides that in making any such order for payment the Court shall have regard to the ability of the father or mother to make such payment, and shall consider the position and condition of life in which it is reasonable that the infant should be brought up, and "any property to which the infant is or may be entitled in its own right." Paragraph (e) of the same clause meets a difficulty which has been very serious in many cases, because it enacts that the payment of money under the clause may be enforced in the same manner as an order of affiliation, provided that, at the discretion of the Court, imprisonment for non-compliance 252 with the order shall not extinguish the debt. There have been cases, several of which have been collected, in which a man has been quite ready to go to prison to get rid of arrears of payment for the maintenance of his child. Under this proposal he would not get rid of that debt, and the arrears would still be obtainable from him.
Clause 5 (h) provides that— In the event of failure of any person required to make such payments to do so, the court may authorise the sums payable under the order or any part thereof to be deducted from his or her wages and paid on behalf of the infant to an officer of the court or some other fit person specified in the order, and in any such case the employer of that person may make the necessary deductions from his wages, and such order shall be an authority to the employer to make the payment so authorised, and the receipt of the person to whom the payment is so ordered to be made shall be a good discharge to such employer. It will be seen that authority is given to the Court to authorise a deduction from wages, and for that deduction to be paid over to the officer of the Court for the benefit of the infant. That is an easy method of obtaining payment; the necessity of the wages having to be paid to the woman or man, as the case may be, is avoided, and they need not meet together over the difficulty of obtaining the money. Another advantage of that provision is this. At present if a woman requires her husband to supply maintenance she can obtain it only by means of a separation. It is of prime importance, particularly with the poor, that separation and the consequent break-up of the home should not take place. But a woman may have considerable difficulty in obtaining the money. Under this suggestion the money would be tapped at the source, and be paid to an officer of the Court, who would see that the woman got it.
Then there are clauses which have been adopted from the Children's Act, 1912—namely, Clause 5 (i) and (j) under which payment can be made to an officer of the Court, and the certificate of the employer shall be prima facie evidence that the wages therein stated as having been paid to any person, have in fact been paid. I think those are all the clauses dealing with maintenance.
The other clauses are of various kinds. They give power to the Court with regard to the removal of guardians in unfit cases, and to guardianship in cases of divorce or judicial separation. Clause 9 allows the 253 Court, when due cause is shown, from time to time to revoke, suspend or vary the order on the application of any party affected by it. That is an addition to the law, and one which seems, prima facie, very valuable. Clause 10 deals with certain cases where the marriage of a legitimate infant requires consent. The clause has been inserted at the suggestion of the Registrar-General. It is, I believe, a fact that at the present time a great many marriages take place entirely in contravention of the law. If a husband is absent for twenty years the Registrar-General, without any statutory authority, has to assume that he is dead. If the husband has been absent for seven years the Registrar-General would assume that he is dead, but there is no statutory authority for that, and Sections 16 and 17 of the Act of George IV certainly require amendment, and probably would have been amended before this had attention been called to the matter.
Then, under Clause 11 and other clauses, this Bill is made to apply to Courts of Summary Jurisdiction. It is of high importance that, if possible, the provisions for the maintenance of children should be made to apply to the homes of the poor, so that the children of poor parents should not suffer in comparison with those who are more wealthy. I think the provisions of this Bill, although some portions of it may be difficult from the point of legal administration, would have that effect.
It is proposed to apply the Bill to Scotland and England, but not to Ireland. The Scottish law, I am informed, is far more broad, and on a much sounder basis, in the opinion of many, than the law which appertains to England. There are no wards in Court in Scotland, but there are provisions for aliment and for obtaining maintenance in a much stronger way than is possible in this country. Almost the only alteration that would be made in the law of Scotland by the provisions of this Bill is, I think, the joint power of appointing a guardian. The Bill is not meant to apply to Ireland, because, in present circumstances, it would he impracticable to suggest that it should. A Bill in almost similar terms, with the exception of the clause with regard to marriage, was introduced in another place last year. After a long debate it passed, without a Division, through its Second Reading, and through Committee, but, owing to the session coming to a close, and to pressure of public 254 business, it could not be proceeded with further. It is introduced now in this House with a hope that, if it can pass through your Lordships' House, it will again find acceptance in another place, and become the law of the land.
I may add that I should nut quite adopt the strong words of the Agent-General for British Columbia, who wrote of a similar Bill in that country that. it "has had the effect of wiping out one of the most abominable anomalies of British law under which, for centuries, mothers have been deprived of the natural right to the guardianship or to a share in the guardianship of their children"; but I would point out that in several Colonies—that Colony as well as others in New Zealand, and in Queensland, this kind of provision for the greater authority of the mother over her own child has been enacted, and enacted with some success. I trust your Lordships may be willing to give this Bill a Second Reading. The legal difficulties can doubtless be considered in Committee. I beg to move.

THE PARLIAMENTARY SECRETARY OF THE MINISTRY OF HEALTH (THE EARL OF ONSLOW)
My Lords, the objects of this Bill have the sympathy of His Majesty's Government, but, in saying that, I hope your Lordships will not understand that I am committing the Government to any definite course of Parliamentary action. In its present form, as I think the noble Lord suggested, the Bill presents numerous legal difficulties, and these would render it impossible for the Government to accept the Bill as it stands. I do not think that I need trouble your Lordships by discussing the exact nature of these difficulties at the present time, but I have a suggestion to make to my noble friend which, I trust, will prove acceptable to him. A small Committee of the Cabinet has been formed to consider the whole of this question, and it has been suggested that the noble Lord who introduced the Bill might meet that Committee, and confer with them with a view to seeing if a solution of the question cannot be arrived at. If that proposal be acceptable to my noble friend, I am prepared to agree to the Second Reading of the Bill, provided that it is understood that the Government are not committed to any definite course of Parliamentary action in consequence.

§ VISCOUNT HALDANE
My Lords, I am glad that on behalf of the Government the necessity of doing something in the matter has been recognised, and this Bill received with sympathy. The Bill seems to me to be one which only brings up the law to the general level at which it ought to be, having regard to the changed status which has recently been enacted between husband and wife. There are various points in the measure which I think would require consideration, but they are mostly of a drafting character. For instance, Clause 5, in its relation to Clause 3, is, I think, hardly wide enough. Clause 3 relates to custody and other rights. Clause 5, in the first part of it, is confined to custody only. There are numbers of other rights which have come before this House in its judicial capacity, and which constantly come before the Courts. These have to be considered, and I am not sure that this Bill provides for them quite fully. For example, there is the question in what religion the child ought to be educated. Prima facie the father has the right to say that, but the father may be a very unfit person. I have known that to be the case over and over again in cases which have come before the tribunals. No doubt these things will be considered.
As to the general principle of the Bill, I am wholly in accord with it, but there are matters of detail which require looking into. I am not sure that the provisions of the Scottish Law really throw so very much light upon this matter as is conceived. It is quite true you do not make children wards there, but you do appoint what are called curators. I do not apologise to your Lordships for my pronunciation of the word curator, because long ago, when at that Bar a distinguished Scottish counsel was challenged for speaking of curators, he apologised to such distinguished senators and orators as your Lordships are." Be that as it may, it is very satisfactory to know that the whole matter is coming before a Committee of the Cabinet, and I hope all these points will be taken into consideration.