HC Deb 05 May 1914 vol 62 cc233-47

If a local education authority are satisfied, after consultation with the parent of a mentally defective or epileptic child over seven years of age, that the parent is not making suitable provision for the child's education they may require the parent of the child to send the child to a certified class or school suitable for the child, and if he fails to do so may apply to a Court of Summary Jurisdiction for an order requiring the child to be sent to a certified class or school suitable for the child and willing to receive him, being either such as the parent may select, or if he does not select a suitable class or school, then such class or school as the Court thinks expedient, and such an order shall be a sufficient authority for the conveyance of the child to the class or school named in the order:

Provided that no order shall be made requiring the child to be sent to a certified class or school which is not within reach of the child's residence or to a boarding school without the consent in writing of parent, unless it is proved to the satisfaction of the Court that such consent is unreasonably withheld, or that the parent cannot be found, but consent shall not be deemed to be unreasonably withheld if withheld with the bonâ fide intention of benefiting the child.

Provided further that if the Court shall refuse to make an order the parent shall be awarded all the costs and expenses, including loss of wages, which he may have suffered as the consequence of attending the Court.

Amendment made: In the first paragraph, after the word "fails" ["and if he fails to do so"], to insert the words "without reasonable excuse."

Mr. C. BATHURST

I beg to move, in the first paragraph after the word "for" ["authority for the conveyance"], to insert the words "the compulsory attendance at and."

This contemplates the making of an order by a Court of Summary Jurisdiction to the effect that a child, the consent of whose parents has not been obtained, shall be conveyed to a school, but there is no provision whatever that, although the order necessarily and naturally provides for the compulsory education of the child at the school, the order shall be carried out. I think that is an omission which ought to be made good, and seeing present the learned Solicitor-General, who is an expert draftsman, I hope he will be able to accept this Amendment, as making clear what I believe to be the meaning of this Clause.

Sir S. BUCKMASTER

I think if the hon. Member will consider with me the words of this Section, he will find that his Amendment is not really wanted. Application is made to the Court for an order requiring the child to be sent to a certain kind of class or school. That is the order which is made, and the Clause provides that such order directing that he is to be sent to a suitable school or class shall be a sufficient authority for the conveyance of the child to the class or school made in the order. The order must, on the face of it, direct attendance at the school, and the introduction of the words suggested by the hon. Member, so far from helping the matter, would only confuse it.

Mr. C. BATHURST

In face of the opinion of the hon. and learned Gentleman opposite, it is difficult for me to argue that such words as I have suggested are necessary. The Solicitor-General has told us that providing for the conveyance of the child to the school is all that is necessary.

Sir S. BUCKMASTER

No, Sir. I pointed out that the order on the face of it directs that the child shall go to school. That is the order, and it is that order directing it to go to school which is the authority enabling the child to he conveyed there.

Mr. C. BATHURST

I do not want to contest that point, and I do not wish to press the matter except to suggest that the order is intended to do a great deal more than direct the conveyance of the child to school. I do not press my proposal, and I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Mr. GRETTON

I beg to move, in the second paragraph, to leave out the words "unless it is proved to the satisfaction of the Court that such consent is unreasonably withheld, or that the parent cannot be found, but consent shall not be deemed to be unreasonably withheld if withheld with the bonâ fide intention of benefiting the child." I admit that this Bill has been improved in Committee. The arbitrary authorities of the education authority—

Lord A. THYNNE

On a point of Order. I wish to ask whether this is not a question which has been very fully discussed at a previous stage, and has already been settled by the House?

Mr. GRETTON

I wish to point out that what has been settled by the House is the question that the child should be sent to a school. This is quite a limiting point, which I contend has not been decided. The House has decided that the child should be sent to a day school, but it has not decided until we have passed this proviso that the child should be sent to a residential school.

Mr. DEPUTY-SPEAKER

I was under the impression that this matter was dealt with in a previous Debate.

Sir S. BUCKMASTER

There is no doubt the matter was dealt with, and the question of sending the child to a residential school was the express subject of Debate.

Mr. GRETTON

Of course, if I am out of order, I will not press my Amendment.

Amendment, by leave, withdrawn.

Mr. C. BATHURST

I beg to move, in the second paragraph, after the word "intention" [bonâ-fide intention"], to insert the words "and a reasonable prospect."

What is contemplated is that any parent shall be able to decline his consent to the attendance of his child at a certain class or school if he is able to say it is his bonâ-fide intention to benefit the child. I would suggest that a very large proportion of the parents of these children are not really the best judges as to whether benefit will accrue to the child or not in the event of the child being kept away from the particular class or school that is deemed in other cases to be of advantage to the child. It is the benefit of the child we have to consider, and not merely the particular fancies of certain parents who may not be sufficiently enlightened—

Lord A. THYNNE

I desire to call attention to the fact that the question of the competency of the parents has already been decided.

Mr. C. BATHURST

I really do not know what these irrelevant interruptions of the Noble Lord mean, but, if they mean that what was decided in Committee is going to be withdrawn from the purview of this House as a whole, I, for one strongly protest against it.

Lord A. THYNNE

I think the Solicitor-General will bear me out that this was discussed at an earlier stage this afternoon.

Mr. C. BATHURST

Nothing that has occurred in the course of this Debate has dealt with the specific point which is referred to in Clause 4, namely, as to whether a parent, when an order is made requiring the child to be sent to a certified class—that is an order of a Court of Summary Jurisdiction—can or cannot decline, his consent on the ground that he intends to benefit his child in some other way. That matter has not been dealt with in any way whatever.

Lord A. THYNNE

I submit that the point has been dealt with. We had a considerable discussion this afternoon as to whether parents of mentally defective children were themselves, as a rule, sufficiently normal to be competent to take a decision on this point.

Mr. DEPUTY-SPEAKER

It seems to me a minor point slightly strengthening this part of the Clause, and I do not think I could rule it out of order.

Mr. C. BATHURST

I hope that in this matter, as in the case of normal children, the discretion will remain with the local education authority and the Board of Education, who can best decide whether the parent in such a case is likely to benefit the child, whose interests, after all, we have most to consider in an Education Bill.

Mr. BOYTON

I beg to second the Amendment.

Mr. GRETTON

I think the Government hardly realise what they are doing. Do I understand that they are going to accept the Amendment? If they are, we shall certainly have to examine it carefully, and I, for one, shall oppose it at every; point. It is going to bring in the arbitrary authority of the education authority or; some Court of Law.

Lord ROBERT CECIL

The Government are not going to accept it.

Mr. TREVELYAN

This follows Section 6, Sub-section (3) (a) of the Mental Deficiency Act, and I think it would be j very unwise that we should depart from the phraseology adopted in that Clause.

Lord A. THYNNE

The hon Member cannot brush aside this question quite so lightly as he appears to think he can. He is asking a Court of Law in this Section; to judge of the bonâ fides of a parent with: regard to the benefit of his mentally deficient child. All my hon. Friend asks the; Government to do so is to add to the bonâ fide intentions of the parent that there shall be a reasonable prospect of the child being benefited. It is a point of very great substance indeed, and I really do not see how the Government can brush it aside in this light airy fashion.

Sir S. BUCKMASTER

The Noble Lord who attended most carefully the earlier part of the Debate this afternoon will realise that the House felt some uneasiness about the Sections of the Statute which took the child away from its parents and placed it in one of these boarding schools. It is intended to temper, as far as possible, the stringent provisions of the Statute, and to provide, if the parent does honestly desire to keep the child and has no ulterior motive, that then the mere fact that he will not consent to sending the child to a boarding school is not to be considered sufficient reason for the Court taking the very severe and drastic measure of ordering the child to be sent [An How. MEMBER: "What will be the result to the child?"] I do not overlook that, but one has to remember that in this case there are two sides. There is the child, and there is the parent. If the parent has really an honest and sincere intention of benefiting the child there is something to be said for the view that in itself shows there is some reasonable prospect that the child will be benefited. If the parent is neglecting the child, or overlooking it, or keeping it at home for improper purposes, then the order will be made; but in the other case it is not thought right that the order should be made. That is the reason the Statute is drawn in this form.

Question, "That those words be there inserted," put, and negatived.

Mr. PEASE

I beg to move, in the third paragraph, to leave out the words "the parent shall be awarded all the costs and expenses, including loss of wages, which he may have suffered as the consequence of attending the Court," and to insert instead thereof the words— and the Court awards costs to the parent, the costs so awarded shall, unless some reason to the contrary appears, include such sum as compensation for the expense, trouble, and loss of time incurred in or incidental to his attendance at the Court as to the Court may seem just and reasonable.

Lord ROBERT CECIL

The Amendment put down by the right hon. Gentleman is in substitution for an Amendment carried in Committee against his view, which runs in these words:— Provided, further, if the Court shall refuse to make an order the parent shall be awarded all costs and expenses, including the loss of wages, which he may have suffered in consequence of attending the Court. The right hon. Gentleman proposes, in the first place, to insert a power to the Court to refuse to award costs to the parent, and then, in addition, he proposes to make it not obligatory to give the whole of the expenses to the parent, but only unless some reason to the contrary appears. I venture to think that is not a satisfactory substitute for the Amendment that was carried upstairs, and I should like to know from the right hon. Gentleman some reasons why he has changed, not the phraseology, because I do not care about that, but the substance of the intention of the Amendment that was carried upstairs.

Sir S. BUCKMASTER

The Amendment now proposed is one the Government desire to insert in place of the Clause to which objection was taken. There are Amendments of the Noble Lord to it raising what I understand are the important distinctions between the Clause now proposed and the Clause which the Noble Lord said was carried upstairs. It would be better, I think, that I should deal with the questions raised on the Amendments of the Noble Lord, which I think he will find raises the real material distinctions.

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

Question proposed, "That the words 'and the court awards costs to the parent, the costs so awarded shall, unless some reason to the contrary appears, include such sum as compensation for the expense, trouble, and loss of time incurred in or incidental to his attendance at the court as to the court may seem just and reasonable,' be inserted in the Bill."

Lord ROBERT CECIL

I beg to move, in the proposed Amendment, to leave out the words "and the Court awards," and to insert instead thereof the words, "the Court, unless for good cause it shall otherwise order, shall award."

This is an entirely new departure, but I think I shall have the assent of the hon. Member on the Labour benches who supported me in the view that what was desired upstairs was to give a real security that the parent should not be fined even when he was right in resisting the order of the Court. The point arises only in this case. When the local authority applies for an order and the Court refuses the order on the ground that it has been improperly applied for, none the less, under our present law, and under the law as proposed, without this Amendment, the parent is fined, and very often heavily fined, by having to attend the Court in order to obtain what the Court itself says is justice. It was to deal with that difficulty that these words were inserted. Now it is proposed to give to the Court complete unfettered discretion whether they shall or not give costs. I am sure the Solicitor-General will not dispute this, that since this is a new power the ordinary inertia of the Court will be rather against than in favour of exercising it, and, unless some indication is given by the legislator that a parent ought to be indemnified altogether from the expense of being made to attend the Court to assert his rights, there will be a grave danger, if it comes before an ordinary Petty Sessional Court, that the Court, or the clerk, will think it a rather newfangled proposal, and the whole prejudice of the Court will be against granting these costs. It seems to me very important indeed that we should, on the face of the Clause, insert a clear indication of what was in the mind of Parliament, so that, unless there was some good reason to the contrary, the parent should have his costs—and real costs. I quite agree that, as we drafted it upstairs in the Committee, it went perhaps too far by giving the Court no discretion, and, therefore, I suggest we should use these words, with which the Solicitor-General will be quite familiar, seeing that they are taken from a rule of the Court dealing with cases where a plaintiff is deprived of his costs after having obtained the verdict of the jury. I am merely asking that in these cases you shall not tie the hand of the Court. That would be going, perhaps, too far, but we should distinctly indicate that the Court should give costs, and real costs. For the moment the question is whether they are to give costs when the local authority has applied for an order and been refused. I think, in that case, according to all the elementary principles of justice, where a local authority, with the whole of the rates behind it, brings a working-class parent before a Petty Sessional Court, it should, if it is proved to be wrong in bringing him there, pay the normal costs of his attending, unless the Court, for good cause, shall otherwise order. I hope the Government, now their attention has been called to the matter, will see their way to accept which I submit to be a reasonable measure of justice.

Lord A. THYNNE

I beg to second the Amendment.

Sir S. BUCKMASTER

I do not misunderstand, and I am sure I sympathise with the motive which has led the Noble Lord to move this Amendment, but I think a little consideration will show him that in attempting to remedy a grievance m certain places that exists he has incurred the risk of creating another grievance far more serious. Let me just ask his attention for a few moments to the provisions of the Statute in relation to which this question may arise. If, after consultation with the parent of a child over seven years of age, the local education authority is not satisfied with the manner in which the parent is dealing with the child, the first thing is that a requisition is made on him that the child be sent to a school. It is only after that requisition has been made and after non-compliance with it that proceedings are taken at all. When proceedings are taken no order is made upon them to send the child to a certified class or boarding school without the written consent of the parent, unless it is proved that the consent is unreasonably withheld. No order is made unless an unreasonable act has taken place on the part of the parent, and that unreasonable act must be one that necessarily deserves some punishment. Then the order is made. I do not think the Noble Lord will dispute that it would follow on that order the right would probably be exercised of making some order for the payment of costs. That the Amendment would not affect. It only deals with cases where the order is refused, and in a case where the order is refused the Noble Lord desires that the refusal should automatically carry with it the right to costs on the part of the respondent, unless good cause is shown to the contrary.

What I ask the Noble Lord to consider is this: In many of these cases the magistrates will be dealing with ignorant parents. In some cases it has been suggested, no doubt with good reason, that the parents themselves may be partially mentally defective. In such a case the Court would be very reluctant to make an order; it would see there had been stupidity and that it was unreasonable for the parent to withhold consent, but at the same time, while feeling that the stupid person had acted unreasonably they would be most anxious not to punish him and would make no order, but would adjourn the summons for a short time and point out to the respondent that, if during the interval the direction was complied with, no order would be made, and everything would be at an end. If the result of that is going to be that there is to be a right on the part of the respondent to costs unless good cause is shown to the contrary, a condition which it is difficult very often to satisfy, the temptation will most undoubtedly be to make the order so as to save the possible obligation to pay costs. I submit there is no doubt about that, and the result will be that the Noble Lord, in his anxiety which I fully share, to avoid one form of injustice will have, if his Amendment is accepted, run a risk of a graver injustice, because the bias of the magistrate will be in favour of conviction in order to save the costs, instead of being, as I think we are agreed it should be, to avoid by all possible means a conviction, and to try persuasion and the influence of the Bench upon the respondent so as to avoid the necessity of making the order. That is the reason why the Government are unable to accept a provision which throws upon the Bench the duty of making an order for the payment of costs unless there is good cause to the contrary, a question which, as the Noble Lord knows well, has vexed and disturbed Court after Court of Law, because it is by no means an easy matter to determine.

Mr. GRETTON

The reasons which the hon. and learned Gentleman has just given do not convince the ordinary man of common sense who occasionally goes into the very humble Courts of Law, which, no doubt he does not now frequent. He appears to propose that the unfortunate parent who is summoned is not to have the case decided, but is to be mulcted in costs and is to have his case referred back with further costs incurred at a later hearing. I cannot imagine any more effective way by giving the sole power to the officials. There is no doubt that in many cases there is a good defence to actions brought against humble people, but they are not able to put forward the defence, because if they win or lose they are overwhelmed with costs. The object of the Amendment is to give a real remedy where there is a good defence. If a man knows he is in a position where he will get costs, he will go for justice. At present, even though he has a just cause he has all the terror of losing a great deal of time and his wages. This Amendment is really necessary if the Clause is to be effective, and if my Noble Friend goes to a Division I shall certainly support him.

Mr. POINTER

I am not convinced by the Solicitor-General's argument, and I do not think he made out any case at all. As I understand the position, the Amendment made in Committee meant that if, after the proper proceedings had been pursued, a certain parent were brought before the Court, and after he had been tried and found innocent he should have the right to recover costs in lieu of wages, etc. Now the Government come along with an Amendment which allows great discretion as to whether or not the Court should give costs. That is a weak point. The Noble Lord seeks to amend that proposal and to restore a part of the position as arrived at by the Amendment made upstairs. He is leaving a discretion to the Court. The Solicitor-General's argument seemed to be that if a case was difficult to settle at one sitting, it might be necessary, in order to bring the powers of persuasion to bear upon the recalcitrant parent, to postpone the trial for a short time—

Sir S. BUCKMASTER

I said it might be a case quite easy to settle at one sitting, but a case in which, in the interests of the parent, the Court might be anxious that they should not make an order.

Mr. POINTER

The argument is the same in either case, so far as my argument is concerned. Surely the discretion allowed to the Court under the words suggested by the Noble Lord will meet that case. There would be no compulsion on the Court to take a wrong decision in order to save expense if this discretion is given, because the fact that they held it over for a week, fortnight or month, during which time they would try to bring the parent round to their point of view, would be sufficient justification for them to withhold the question of costs altogether until the matter was finally settled. The one argument advanced by the Solicitor-General, that it would be forcing the Court to impose a fine, whether they wanted to or not, falls to the ground, because it would be covered by the discretion given under the Noble Lord's words. Personally, I feel strongly that it is only the ignorance and stupidity of parents with which we shall be troubled, and if it is stupidity they ought not to be fined, because in nine cases out of ten they will be very poor, and if the circumstances are such that the Court cannot find sufficient ground for making an order, I think they ought to have the right to costs.

Lord ROBERT CECIL

I cannot help hoping that the Government will see their way to accept this Amendment. If we take the Solicitor-General's own case, the hon. Member who has just spoken gave an admirable answer to it, namely, that it would be covered by the word "good cause." What would happen in the case put by the Solicitor-General would be that the case would be adjourned and there would be no question of making or refusing an order. The case would then come before the Court again. If the parent had not complied, the order would be made and no case would arise, but if he had complied, do not the Government realise that it is not unreasonable, if the Court should think it right, that he should have his costs and expenses? Do put yourselves in the position of this unhappy man. He is a poor man, a stupid man, with practically no adviser, who is opposed by a local authority with a skilled advocate and the whole weight of the expert opinions behind him. He fights under tremendous disadvantage in any circumstances. There is not the slightest danger that the local education authority will often have to pay costs. However you word your Statute it will only be in cases of clear mistake or clear injustice. I respectfully appeal to the Government not to use their power. Undoubtedly they have that power in this House. They would not have it in Grand Committee, where they would not have a chance if those who are going to decide it had heard the discussion. Of course, they can send their Whips and send for Members who are smoking or dining, but they will be using the whole power of the Government simply to oppress some unfortunate individual. Possibly the Solicitor-General has persuaded himself that there may be a chance that a magistrate, in view of the possibility of having to give costs against the local education authority, will make an order rather than adjourn the ease and make no order. That is an entirely illusory fear, but, if the fear exists, it is met by the words giving the Court an opportunity, on good cause shown, to avoid making an order for costs. As to the difficulty of construing those words, to which the Solicitor-General referred, he will see it is not a difficulty which will arise in this case. The difficulty has arisen from the fact that a jury giving one farthing damages only is not in itself a good cause. I venture to appeal to the Government to give way upon this point. It cannot possibly affect the substance of their Bill. If they do not give way, I shall have to go to a Division to ascertain the view of the House upon it.

Sir S. BUCKMASTER

I can assure the Noble Lord that nobody is more anxious than we are to see that no hardship or injustice is done. I still take the view I took, that this Amendment might inflict a hardship which the Noble Lord would be the first to avoid. None the less, it is quite obvious that the Noble Lord quite sincerely thinks otherwise, and it is obvious that his view is shared by hon. Members who sit below the Gangway, who look at the matter in a totally different light from that in which I regard it. We certainly have no desire at all except to secure a man against hardship and unfair treatment, and if the Noble Lord thinks his words are better than those we propose, I am prepared to accept them. That would simply provide that the Court shall award costs in cases where no order is made, unless there is good cause to the contrary.

Lord ROBERT CECIL

Exactly.

Sir S. BUCKMASTER

The other Amendment raises a different consideration.

Lord ROBERT CECIL

There are two other Amendments—one is merely verbal, to insert the word "and," and the other raises a substantial point about wages, and I will move it.

Question put, and agreed to.

Further Amendment made in the proposed Amendment: After the word "parent" ["costs to the parent"], insert the word "and."—[Lord Robert Cecil.]

Lord ROBERT CECIL

I beg to move, after the word' "time" ["expense, trouble, and loss of time"], to insert the words "and wages."

I think there is no difference of opinion between the Government and myself on this. The only question is whether these words are necessary to make it clear. The words that the Government propose are "expense, trouble, and loss of time." It does not seem to me quite clear that any of these words would cover what is, after all, the main point—namely, wages. If the Government are perfectly sure that wages are covered by their words, I should not like to pit my opinion against the Government draftsman's, but I doubt it very much, It seems doubtful whether loss of wages could be said to be an expense. It certainly could not be trouble, or loss of time. If it is covered by any of these words, it must be expense. Can you say a man is put to expense because he loses wages? Expense means paying something out. It is not a failure to receive something which he otherwise would receive. That is the difficulty I am in. I think it would be better to insert the words "and wages," which would make it quite clear.

Mr. GRETTON

I beg to second the Amendment. Time and wages are two different questions. A man is often employed on piece work, if he is employed by the hour and loses wages it comes under time. If he is employed on piece work and loses a portion of his wages, a great difficulty will arise because he is not employed by time. I think my Noble Friend is right, and the word "wages" ought to be inserted.

Sir S. BUCKMASTER

Our view is not that these wages are included under "expenses," but under "loss of time," and I think it is reasonably clear. A Statute was passed in 1908 called the Costs in Criminal Cases Act, and by Section 1, Sub-section (2) of that Statute power was given to make rules with regard to costs. It says:— The Court may order the costs of the defence to be paid, and those costs shall include costs reasonably sufficient to compensate any persons properly attending to give evidence or called to give evidence for expense, trouble, or loss of time properly incurred. 9.0 P.M.

These rules provided that the allowance for witnesses who do not lose wages should be a certain sum, and the allowance for a witness who loses wages by attending should be on this basis, that agricultural labourers and unskilled labourers should get 3s. 6d. a day, artisans and mechanics 5s. a day, and clerks and shop assistants 5s. a day, except on the production of a certificate from the employer, showing that the wages were in excess of the rate, and in cases where they were in excess of the rate they got the greater sum. The view we take is that loss of time includes wages, and it may possibly be that it includes something more. While I think it includes wages, and it is our intention that it should, we do not want to put in wages which are part of the loss of time. That is a wider matter.

Lord ROBERT CECIL

I am quite satisfied with that statement. If it should turn out to be wrong, it could easily be put right later on.

Amendment, by leave, withdrawn.

Question, "That the words, 'The Court, unless for good cause it shall otherwise order, shall award costs to the parent, and the costs so awarded shall, unless some reason to the contrary appears, include such sum as compensation for the expense, trouble, and loss of time incurred in or incidental to his attendance at the Court as to the Court may seem just and reasonable,' be there inserted." put, and agreed to.

Further Amendment made: At the end of the Clause insert the words,

  1. "(2) The provisions of this Section shall be in substitution for, and not in addition to, the power of a Court of Summary Jurisdiction, on an attendance order not being complied with, to order the child to be sent to an industrial school under Section 12 of the Elementary Education Act, 1876, as applied by the principal Act.
  2. (3) Nothing in this Section shall be construed as affecting the power of a parent to withdraw a child from school on proof to the satisfaction of the local education authority that he will make suitable provision for the child's education in some other way."—[Mr. Joseph Pease.]