HC Deb 14 December 1837 vol 39 cc1082-91
Mr. Sergeant Talfourd

rose and spoke as follows:—As the bill which I am about to request leave to introduce is the same in substance with one which was read a second time last Session, I might, perhaps, venture to anticipate that there will be no objection to its introduction now, and might content myself with simply naming it. But as the subject then passed without development on my part, or discussion on the part of the House, and as the actual bearing of the law which I seek to alter may not be familiar to the minds of those who are fortunately strangers to the circumstances to which it applies, I think it better in this stage to ask the indulgence of the House for a short time while I state what the grievances are which I shall call on them partially to redress. The subject has reference to the rights of parents in relation to their children, when the natural state of joint superintendence and protection is broken by unhappy differences, which compel or induce them to separate, without involving any breach of the marriage tie on the part of the mother. Many, I believe, there are who pass their years in the tranquil enjoyment of domestic happiness, uniting their exertions to mould the character and contribute to the innocent delights of their children, and sharing in the requital which expanding intellect and ripening affections reflect back upon them, from whom the stern power with which the law arms one of the parents is veiled by the gentler influences, or who, if they have learned its existence, regard it as a dead letter. They may have heard that by the law of England the custody of all legitimate children from the hour of their birth belongs to the father, but they will be startled to learn what is the situation of the mother with respect to them, if circumstances, however urgent, should drive her from his roof, or to what moral torture she may be legally subjected even if she should linger beneath it. Not only may she be prevented from bestowing upon them in their early infancy those solicitudes of love for the absence of which nothing can compensate—not only may she be prevented from tending upon them in the extremity of sickness, but she may be denied the sight of them; and, if she should obtain possession of them, by whatever means, may be compelled by the writ of habeas corpus to resign them to her husband or to his agents without condition—without hope. That is the law—at least such is its recent exposition by the highest authorities; and how is it enforced? By process of contempt, issued at the instance of the husband against his wife, for her refusal to obey it, under which she must be sent to prison, there to remain until she shall yield or until she shall die. And let it not be supposed that this law is one which is rarely brought into operation. The instances in which it is brought before the public cognizance may be few, but it is ever in the background of domestic tyranny, and is felt by those who suffer in silence. There are, however, examples which are recorded in our law books—cases in which all the miseries of public exposure have been already endured, and the parties are beyond the reach of their renewal—to which, and to which only, I shall allude in detail, and which sufficiently exemplify the workings of this hideous injustice. One of these cases is that of the King v. De Manville, reported in 5 East, 221, which related to a female child, of eight months old, receiving nurture from its mother. She was an Englishwoman, who was, unhappily, married to a foreigner, who had quitted him after gross ill-usage, and who had quitted him taking her infant with her. The husband, by stratagem or force, obtained admittance to the house where she had taken refuge, seized the child at the breast, and carried it off, almost naked, in an open carriage. As the child had been violently removed she applied for a writ of habeas corpus. The case was heard on her own statement, as the Court of King's Bench were so clearly of opinion against her that they did not hear the affidavit of the husband in answer, and refused the application, as it did not appear that the child was physically injured for want of nourishment, nor that the husband intended to take it out of the kingdom. And though the Court of Chancery subsequently restrained the father from taking the child abroad, it was wholly without reference to the mother's claim. In Skinner's case (9 Moore, 278) the husband had treated his wife with barbarity; they were separated, he cohabited with a woman named Deverall, and his child of six years of age remained in its mother's care. He sued out a writ of habeas corpus to take it from her, and on the case being heard before Mr. Justice Best, then one of the judges of the Court of King's Bench, a recommendation was made that the rigour of the law should not be enforced, and the child was, by arrangement of the parties, placed in the care of a third person agreed on by them. From this person the father took it by fraud, and gave it into the care of the woman with whom he cohabited, while he himself was a prisoner for debt in Horse-monger-lane gaol, to which place this prostitute resorted with the child. In this state of things the mother applied for a writ of habeas corpus; the case was heard and the court ordered the child to be delivered to its father. In M'Clellan's case (1 Dowling's Practical Cases, 81) the child had been placed at a boarding-school by her father; the mother removed it thence because the child was in declining health, and afflicted with a disease by which she had already lost an elder child, and yet Mr. Justice Patteson said he had no option but to take it from her—he, one of the kindest and most simple-hearted of men, feeling himself compelled to deny to a mother, whose anxieties had been sharpened by the loss of one of her children, the mournful pleasure of watching over the survivor affected by a similar disease. "It might be better (said that learned and excellent person) as the child is in delicate health, that it should be with the mother, but we can make no order on that point." The last case, in which all the authorities were reviewed and the law solemnly declared by the judges of the Court of King's Bench, is so recent that although its details are published in the Law Reports I will only advert to its outline. It was the case of a habeas corpus issued by the father; the mother was admitted to be entirely spotless, and the writ sought to compel her to deliver up three little girls all under six years of age; the infants were brought to the chambers of Mr. Justice Patteson, and, after most strenuous attempts to made between the parties, he made an order for the delivery by the mother to the father. That order was brought before the judges of the Court of King's Bench; by them it was confirmed; by them it was enforced by process of contempt, under which the poor woman must have given up the children or have gone to prison for life, but that she withdrew them from the country became an exile, and, unless happier counsels have since prevailed, retains them in spite of the law. Such is the last decree of the courts of common law—a decision not only honestly but most reluctantly pronounced; but which, I own, seems founded on a rotten or artificial process of reasoning. The father is by law entitled to the custody of his child; all other custody, unless sanctioned by him, is illegal. The illegal custody of a child incapable of personal choice is tantamount to its imprisonment; and as the writ of habeas corpus lies to deliver the subject from illegal restraint, it lies to take a baby from the breast, to deliver it into the freedom of such custody from the prison of its mother's arms. I cannot help attributing the tone of some of the judgments which may seem counter to the strength of the feelings which it was necessary to subdue to the fear that if nature were suffered to interpose, the chain of argument would be severed, and the legal spell dissolved. This, however, the judges of the courts of law have decided, and have felt unequal to mitigate the judgment by any allowance to the mother; holding with Mr. Justice Blackstone, that a "mother, as such, is entitled to no power, but only to reverence and respect," enforcing the father's power, and having none to vender the mockery of reason productive even of compassion. The Court of Chancery, it might be thought, whose jurisdiction is supposed to relax some of the rules of law, could relieve, because it does in some instances interfere with the father's power; it does so, but never on behalf of the mother. There are well-known cases in which, where children by reason of property have been made wards of that court, the father's power has been controlled, and, therefore, it cannot be objected that paternal rights, are, in their nature, too sacred to be subjected to the interference of judges; but while proofs of gross profligacy or even unhappy religious opinion have been thought sufficient to take the children from their father, no regard has been paid to the mother's claim even to be permitted to see them. The case of Ball v. Ball, decided by Sir Anthony Hart in 1827, in. which reference is made to the antecedent authorities, at once illustrates the evil, and points to the remedy I seek to apply. In that case, a petition came on to be heard before the Vice-Chancellor, on behalf of a lady named Ball, and her daughter, a girl of fourteen years of age, her affidavits disclosing conduct of great immorality and violence by the father, which rendered it impossible for his wife to resort to his House. The lady offered to support the daughter out of her own funds, and prayed, if the daughter could not be permitted to reside with her, at least some access of the mother might be secured. The Vice-Chancellor at once rejected the first part of the prayer, asserting that there was nothing alleged to contravene the father's right to the custody of the child. He was then pressed to grant the other and far inferior prayer—a right of access at reasonable times—the question being stated to be this:"Whether a child is to be deprived, by the brutal conduct of the father, of the company, advice, and protection of the mother, against whom no imputation can be raised?" This is the material part of the Vice-Chancellor's answer to this appeal:— Some conduct on the part of the father with reference to the management and education of the child, must be shown to warrant an interference with his legal right, and I am bound to say, that in this case there does not appear to me to be sufficient to deprive the father of his common-law right to the care and custody of his child. It resolves itself into a case for authorities, and I must consider what has been looked upon as the law on this point. I do not know that I have any authority to interfere. I do not know of any case similar to this which would authorise my making the order sought, in either alternative. If any could be found I would most gladly adopt it; for, in a moral point of view, I know of no act more harsh or cruel than depriving a mother of proper intercourse with her child. I was myself counsel in two cases in which Lord Eldon refused petitions precisely similar. 'Smith v. Smith,' one of them, was precisely similar in its parts to the present case, except that the father's object there was to compel the mother, by such means as are now complained of, to give up to him some property which was settled to her own separate use. My course of argument in that case was, that as the law allowed the mother of bastards to retain possession of their children till the age of seven, a fortiori, must the law allow the case of legitimate children to be vested in the mother (the child in that case was under seven). The Lord Chancellor, however, refused the order, and before any further proceedings were had, either the mother's or the child's death terminated the question. That was a very strong case, yet the Lord Chancellor held that the court had no jurisdiction. When Mr. Justice Patteson truly stated "The Court of King's Bench has authority to restore to a father his lights, but has no power to compel a father to perform his duty," one might have hoped that in another court some, counter power might be found: but there is none; and though such gross immorality as may infect the mind of a child, who has property to make him the subject of the Lord Chancellor's protection, may be the ground of removing him from the curse of his father's example, nothing can afford him the blessing of the care of a mother who retires from that father's house. Now, Sir, I only seek to do what the Vice-Chancellor would have gladly done in this case—to confide to the judge at law and in equity the discretionary power of so far mitigating the law which enforces the right of one parent to refuse to the other access, at fitting seasons, to a child of tender age from whom she is divided by unhappy differences with its father. When I think what natural justice requires, I feel ashamed of the slender palliation which I propose, and I own that I should rejoice if I could effect the transfer of the right of custody of children in their earliest infancy, especially female children, from the father to the mother, and engraft the exception upon that altered rule. But the length of time during which the father's paramount right has been recognised by our law, the various by which that power is entwined with our social system, and the difficulty of enabling any court to deal with the property essential to a child's education and maintenance, restrict me to the simple palliation which I ask you to concur in granting. Where is the objection in principle, where the difficulty in practice? In a case before Lord Mansfield—that of Mr. Lytton—where by articles of separation the husband had bound himself to allow the access of the wife to his child, that great judge, admitting that the court could not at any age take a child from its father, said "that as the father had constrained himself by articles to let the mother have access to the child if he chose to take it home he must permit access for the mother to it there." I only ask this most reasonable condition, implied, on behalf of an innocent mother, and the order of the Lord Mansfield is precisely that which I ask the Legislature to sanction. In several cases of this painful description the courts have succeeded in inducing the parties to consent to such arrangements; but experience shows that consent is often asked in vain, and that in mercy to both a power ought to be invested somewhere which may compel that which every judge has desired to induce. In matters which involve only considerations of interest—how falsely fancied to supply the strongest motives to human action!—you may indulge a reasonable expectation that opposing parties will consent to arrangements which are obviously for their mutual good. But you can justify no such confidence in cases of opposing passions—in cases where the dearest relations of life and the affections are armed against each other—where the animosities are not those scarcely worthy of the name—the result of transitory petulance, of party strife, of seeming rivalry, of social misunderstanding, the empty shows and "unreal mockeries" of hatred, which melt and vanish before a touch of kindness—but those hatreds which arise out of the depths of love; and which are fed by pleasant remembrances and by hopes for ever crushed, and which in their very bitterness vindicate the power and the immortality of the affections out of which they sprung. Experience has shown that parties who are thus placed in unnatural opposition can rarely be conciliated in a moment, or induced to listen to reason; and it is almost as much for the benefit of the stronger party as of the weaker that authority apart from either should mitigate a claim which if strained to the utmost must break. A husband who has consented to the extreme measure of suing out a writ of habeas corpusto compel his wife to render his children to his charge, and who must either lose them or enforce his right by sending her to prison, seems to me scarcely less an object of compassion than she whom he pursues; and, therefore, I propose to give to him (leaving his greater right untouched) the opportunity of resorting to the gentler course which is open to the woman. As in the last case, in point of date, if he proceed to extremity he will only obtain a fruitless and a miserable victory. Let the judge award him his writ—let them order his wife to resign her infants unconditionally to his care—let them direct the attachment to issue. A mightier power than theirs—a power against which senators, legislators, and judges decree in vain—the power of affection in the human soul, and the answering sympathy in all who share it—will set at nought their processes, and make them acknowledge what Milton calls "the irresistible might of weakness." But it is not to these extreme cases (in which despair has made a feeble and timid woman bold) that the present law is most to be dreaded. It is the silent operation of its power—the threat which the husband dares scarcely utter—by which he may compel an innocent wife to resign property, or to submit to disgrace, on pain of being excluded for ever from the sight of those who are dearer to her than life. It is in instances in which the sufferer endures unseen, that it is chiefly felt, as a matter of moral torture playing on the finest nerves of agony— as on joint and limb With answerable pains, but more intense. In palliation of these miseries, I do not seek to alter the law of England as to the father's right—I do not ask you to place the unspotted matron on a level with the frail mother of illegitimate children, who is by law entitled to their custody while of tender age—I do not seek to restore to infants those habitual influences of maternal love which, through all classes of society, mould the early affections to value, and are now felt and blessed in its most exalted region; but I do ask some mitigation of the mother's lot—some intervals in which forsaken nature may be cheered and waning strength repaired by the sight of the objects of far looking hope—some slight control over the operation of that tyranny which one sex has exerted over the helplessness of the other. With these feelings I move that leave be given to bring in a Bill to provide for the access of parents who live apart from each other to their children of tender age.

Mr. Leader

I have great pleasure in seconding the motion of my learned Friend. In his admirable speech he has shown what the law now is upon this subject, and where it is peculiarly harsh and cruel. No man who has given this subject the smallest consideration can deny that the law requires some alteration, if in making and executing laws regard should be had to common sense, and justice, and humanity, and if in those laws especially which relate to the intercourse of the sexes, fair protection should be afforded by the stronger sex, who make the laws, to the weaker sex, for whom the law is made, who have no voice whatever in making the law, whose interests are entirely in the hands and at the mercy of the law-makers, and who, having nothing to do with the law but to obey it, ask merely for protection against the cruelty and injustice which may be (and I grieve to say is too often) perpetrated by a brutal tyrant, fortified by the letter of the law. As it stands at present, the law is entirely in favour of the husband and oppressive to the wife. A man who may be drunken, immoral, vicious, and utterly brutalized, may place his wife, who seeks to live separately from him, in this cruel dilemma—"You shall either continue to live with me, or you shall be deprived of your children." The wife, in such a case, has no redress. It may be notorious that she has just grounds for complaint, that it would be misery for her to live with her husband; it may be well known that she possesses her children's sympathy and affection, and that the husband disregards his children, and is disregarded, if not disliked by them. It may be admitted that the wife is the fitter person to have the care of the early education of her children, to form their habits, to minister to their childish wants to soothe them in trouble, and to tend them in sickness. All this may be admitted; but the law sternly refuses to listen to the pleadings of natural sympathies and affections, gives to the husband the charge and possession of the children, and denies even the sight of them to the beloved and loving mother. How many mothers, rather than submit to such a deprivation, are driven to choose the other alternative, and endure a life of harassing ill-treatment and vexation and misery? This is no imaginary case: I know many such cases, which, at this moment, present themselves to my memory. There can scarcely be a Member in this House to whom some such case is not known; there are hundreds of women now suffering in silence, pining for the children whom a stern law has torn from them, now looking anxiously to the decision of this House—now eagerly hoping that the representatives of the people will save them from the terrible alternative which forces them to choose between being the abject slaves of a brutal husband or of being deprived of the very sight of their own children. This is no party question; and I do sincerely hope that the noble Lord the Secretary for the Home Department and the right hon. Baronet the Member for Tamworth will coalesce on this occasion at least, and exert their united authority to induce the House to give that protection to the feeble and to afford that justice to the aggrieved which the learned Member for Reading, in the name of many, too many, of our country women, now prays for at our hands.

Sir E. Sugden

believed that men had very little notion of the intensity of a mother's affection for her children. But the question to be considered was whether the Bill proposed by the hon. and learned Member would not present a motive to induce separations between husbands and wives. The cases which the hon. and learned Member had cited were cases in which the fault was on the side of the husband; while those acquainted with life must well know that there were many cases in which the faults were on the part of the wife. In a future stage he should take the sense of the House respecting the Bill.

Mr. Sergeant Talfourd

observed, that the Bill he proposed made no change in the custody of the children, but permitted access to them, and that only to be obtained upon application to the Lord Chancellor, Vice-Chancellor, or some of the twelve judges.

Leave given.