HC Deb 04 November 1918 vol 110 cc1884-94

(1) Section four of the Bastardy Laws Amendment Act, 1872 (which provides for the making of an Order on the putative father for the maintenance, etc., of a bastard child), shall have effect as though "ten shillings a week" were therein substituted for "five shillings a week."

(2) Where an Order under the said Section four for the payment of a weekly sum is in force at the date of the commencement of this Act, either the Court which made the Order or a Court of Summary Jurisdiction for the place where the person who is entitled under the Order to receive the payment resides may, on the application of the person so entitled, by order vary the existing Order by increasing the amount payable thereunder to such a sum not exceeding ten shillings a week as the. Court, having regard to-all the circumstances of the case, thinks proper.

In the foregoing provision the expression "the person who is entitled under the Order to receive the payment" does not include the collecting officer of the Court to whom or any officer of the Court or other person through whom the payment under the Order is to be made.

Sir R. NEWMAN

I beg to move, in Subsection (1), to leave out the word "ten" ["as though 'ten shillings a week'"], and to insert instead thereof the word word "twelve."

This Amendment has nothing compulsory about it. It merely proposes to enlarge the discretionary power of the justices in dealing with these cases, and when we remember that in 1872 the justices had discretionary powers of calling upon the father of an illegitimate child to contribute 5s. a week, it certainly appears to me to be not unreasonable to fix the sum now at 12s., because when we compare the expenses of the maintenance of a child in 1872 and at the present time, 12s. is by no means extravagant. In nine cases out of ten, in 1872 the father against whom an order was made was probably earning a very much lower wage than he would be at present, and in the same way as wages have been going up so have the expenses of living. Of course the Home Secretary may say it is rather splitting straws to substitute 12s. for 10s., but I take up the stand that 12s. is a minimum, and not a maximum by any means, not in in all cases, but in some cases, where the father is certainly in a position to pay 12s. The Act of 1872 lays down the responsibility of the father to find the money not only for the maintenance, but also for the education of the child. When we think of the education laws of 1872 and the education laws now, we shall see a very great difference. The age of compulsory attendance at school has been raised, and the restriction on child labour has become much stricter. Under these conditions the position of the mother is far more difficult and responsible than it was thirty or forty years ago. In addition to that, I should like to point out that when you are dealing with these illegitimate children the mother is also placed in a very great difficulty. She has to provide practically a home. It is not like the maintenance for an extra child in a family. It very often means the provision of a home. If the mother has to work for her own living and to maintain herself there would be cases in which people would think that 12s. for the maintenance and the education of a child would be by no means an extravagant sum to find. This Amendment does not say that in every case the magistrates should compel the payment of an order for 12s., but it gives the power to the magistrates, if they think proper, to raise the amount to 12s. when they have taken into consideration the expense of living and the educational responsibilities at the present time. Of course, if the father has a grievance, he has the right of appeal to the Sessions. I think the giving of this extra discretionary power to the magistrates would meet some hard cases.

Sir W. DICKINSON

I support this Amendment with the greatest pleasure. The case really has been accepted by the introduction of this Bill. The limit of 5s. has proved to be a very narrow limit and one which the Government evidently feel must be enlarged. Since this Amendment was put down I have been approached by the representatives of the National Council for the unmarried mother and her child, and ask to put forward a rather different Amendment, which I would ask the right hon. Gentleman to consider, namely, that, instead of having any limit he should accept the words "such sums as the justices consider reasonable having regard to the circumstances of both parents." I believe that is pretty much the practice which they have adoptel in Norway for the last few years, and it would be a very much fairer system than that which holds good at the present moment. There ought to be some discretion in the Court to allow the circumstances both of the father and the mother to be taken into account in fixing the bastardy payments. I do not know what line the Home Secretary is going to take upon my hon. Friend's Amendment, but if he feels at all inclined to consider this point, I would hand in the other Amendment when this has been disposed of. It would be quite in order to do so because we are discussing the question whether 10s. should stand part. If the Home Secretary is willing to consider the elimination of 10s. we could take the opportunity of discussing whether we should insert 12s. or the words which I have read out to him, and which I suggest would provide a more reasonable method of dealing with these cases. This question of the bastardy law has been left untouched for a very long time, and I think it is time to consider this larger question as to what ought to be the just treatment of the women who find themselves in this position.

Sir G. CAVE

I quite agree that there is a case for an increased maximum sum, and it is because we hold that view that this Bill is introduced. But at the same time I think there ought to be a maximum limit, and it ought to be a reasonable sum. If you put it too high the magistrates are rather apt to give the full amount in every case. This charge might fall very heavily upon the weekly earnings of a working man. These cases mostly refer to working men. We propose to double the sum from 5s. to 10s. No doubt the cost of living has increased and the cost of keeping a child is greater than it was, and I do not think it is unreasonable to increase the amount to 10s. I will not argue the principle as to whether it should be 10s. or 12s., but you must select a sum which you hold to be reasonable, and after consulting a number of people of great experience in these matters. I have come to the conclusion that 10s. is a reasonable maximum. I agree with much that has been said by the hon. Members, but I take the view that if we double the maximum it will be sufficient, and I hope he will not press his Amendment.

Sir R. NEWMAN

I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Mr. CARADOC REES

I beg to move in Sub-section (2) to leave out the words Either the Court which made the Order or a Court of Summary Jurisdiction for the place where the person who is entitled under the Order to receive the payment resides may, on the application of the person so entitled, by Order vary the existing Order by increasing the amount payable thereunder to such a sum not exceeding ten shillings a week as the Court, having regard to all the circumstances of the case, thinks proper, and to insert instead thereof words Such Order is hereby varied and increased by adding to such weekly sum an amount equal to one-half of such weekly sum. I do not object to 10s. being fixed instead of 5s. I agree that 5s. is far too low, but os most members of the Committee will know, these orders are made for weekly payments to cover periods up to sixteen years of age, so that this will affect orders right back for the last sixteen years. What this Bill proposes is that everybody who was entitled to an order of 5s. a week or less during the last sixteen years and has obtained such orders, may go to the Court and rais the question as to an increase of those amounts up to a maximum of 10s. There are many thousands of these cases, and they are not savoury cases. It is not a good thing for the country to have thousands of these cases brought up in the Court. In many of the cases, in regard to the woman, she may or may not have married. The last thing she wants the public to know is that she has had a chance child, and she will not come to Court. It is only the hardened person who will go there. In many cases the man may have been married eight or ten years, and all these circumstances are going to be raked up against him in the Police Court—as to what his earnings are and how he stands in regard to the child. The child may be seven, eight, or nine years of age and just beginning to know things; just at an age when the schoolboys are beginning to talk, and if the case of this child is to be brought again before the magistrate perhaps everybody in the village or the town would be able to point to that child as an illegitimate.

My suggestion is, that instead of having orders and instead of having all the expense of the magistrate hearing these cases that automatically the past orders should be increased by 50 per cent., so that a person receiving now under any order 5s. would get 7s. 6d. automatically. If they receive 4s. they would get 6s., and if they receive 2s. 6d. they would get 3s. 9d. The basis of this Bill is that the cost of living has gone up and that, therefore, the orders should be increased, because they are not sufficient now. The magistrates, when they made the orders for 4s. or less in the past, did not give the maximum because they thought there was some little fault on both sides, and they may have allowed 4s. to the mother. That, under my Amendment, would be increased to 6s. By doing this automatically it would save the time of hundreds of magistrates and would save the raking up of unsavoury cases of years past. We are now by Act of Parliament increasing amounts which have been fixed by magistrates in the past. That is a novel and rather dangerous thing to do, but we are doing it. Seeing that we are doing it I think it would be best that the increases should be at the rate of 50 per cent. automatically. Everybody would straightaway get 50 per cent. increase, and the public would not be any the wiser.

8.0 P.M.

Mr. KING

I am very glad that the hon. Member has raised this question. With a great deal of what he said and with his main object I heartily sympathise, but as I have studied this question a very long time with considerable attention, I cannot say that I think his solution of the difficulty is the right one. My general feeling is one of sympathy with the poor, and I am all for increasing the amount, but to increase all orders automatically by 50 per cent. is not a practical proposal. There are some cases of men who are now in a position of invalided incapacity, or there are certain cases where facts have to be taken into account which the magis- trates ought to be allowed to take into account. Therefore, to increase all the orders automatically by 50 per cent., while it might be wide generosity, is hardly practical justice in the administration of the law. I should like to point out to the hon. Member and the Home Secretary an Amendment which I have on the Paper later, to omit the word "not" ["does not include"]. I do not know whether my Amendment is good in form, but the effect of it is quite clear. I realise with the hon. Member that there are many women receiving these amounts who may not want to go again into open Courts. That is an infliction of a trial which is unnecessary, and I want to get out of that somehow or other. To have the rehearing of a matter which may be years old brought up again into Court is really undesirable. I think the Home Secretary must realise that. It is undesirable, too, because in many cases the child, instead of being an infant will be a child at school known to the teachers and so on. If you could get out of a public hearing it would be a good thing, and in some cases you might allow the collecting officer of the Court, who generally knows all the circumstances of the case, and is a disinterested person, to apply for an increase, and that might be made a condition of the Bill. But I cannot support the Amendment of my hon. Friend though I think that there is a case to be met, and if it is met the Bill will be more just and satisfactory.

Sir G. CAVE

No doubt the proposal would be welcomed if it were practicable, because it would relieve the Courts of summary jurisdiction of a great deal of work, and make it unnecessary for a number of women benefiting by these orders to come into a public Court. On the other hand, the proposal of my hon. Friend limits the increases in each case to 50 per cent., which would put the past cases on a worse footing than future cases. I think that is a defect of the proposal. Apart from that, I take the view that each case should be dealt with on its merits, as it may well be that since the order was made conditions have altered greatly. A woman who was then poor may have become well off, or a man who was well off may have become poor. Those are facts which the magistrate ought to know and consider in dealing with this question. For that reason as well as others. I think it better not to accept this Amendment. I will deal with the view of the hon. Member opposite (Mr. King) when his proposal comes up.

Amendment, by leave, withdrawn.

Sir G. CAVE

I beg to move, after the word "order" ["order of a Court"], to insert the words or any other Court of Summary Jurisdiction for the same Petty Sessional division. This is a formal Amendment. The point is this: The magistrates who made the order may no longer be sitting or they may object to adjudicate, and therefore we want to enable the same Court, though not necessarily the same Justices, to make an order.

Amendment agreed to.

Mr. KING

I beg to move, after the word "entitled" ["so entitled"], to insert the words or on the application of the child's guardian or representative. There are cases in which orders are made payable to certain persons and then lapse. A woman gets an order for a child's maintenance and receives the money for a time. Then she goes away for some reason or other, as women who have been unfortunate in this way often do, leaving the child. The father is known, but the woman is away, and you cannot have the money paid to her. I want to be sure that the child's representatives or guardians in such cases as that will have the benefit of this money. If the point has been considered by the Home Secretary and the draftsman, perhaps he would say so. Otherwise, I think that the words proposed do make the Bill more complete, and will make it work more harmoniously with all the possible facts.

Mr. REES

If the object of this Bill is to get sufficient to maintain the child and the child is being brought up by the guardians, they ought to have a right to apply for an increase. Does the Bill intend to exclude guardians from getting an increase in these cases?

Sir G. CAVE

This point has been considered. As things are to-day the order is made in most cases for payment to the mother. If the mother is not capable of receiving the payment, then a person is appointed to have the custody of the child and the money is made payable to that person. If that person should disappear somebody else is appointed, but always the money is paid to the person having custody, whether it is the mother or somebody else. If that person is the guardians or somewhere representing them the guardians would be the persons to make application. If the Amendment were accepted, you would have a state of affairs in which two persons might be entitled to apply, the person having custody and the guardian. They might apply to different Courts and make different applications and you would have a difficult situation. The right thing is to leave the Bill as it stands. This applies to both of my hon. Friend's Amendments.

Mr. KING

I am sorry that the Amendment is not accepted, but I know that it is a difficult administrative and legal point, and therefore I will not press it. But I am not quite satisfied, because a legal friend of mine, who takes a great interest in the matter, writes to me that on this point there seems to be something to be said. I would ask the Home Secretary to consider the matter again with the draftsman before the Bill goes to another place, and on those terms I withdraw the Amendment.

Amendment, by leave, withdrawn.

Sir R. NEWMAN

I beg to move, to add the words Any Order made under the Bastardy Laws Amendment Act, 1872, or this Act may be varied at any time either by the Court of Summary Jurisdiction which made the Order or by a Court of Summary Jurisdiction for the place where the person who is entitled under the Order to receive the payments resides. The Home Secretary himself has supported this Amendment when he said that one of the great arguments in favour of reviewing cases at the present time, was because the positions of so many persons had become greatly altered with regard to income, some fathers or mothers having become poorer, and others having become better off. It is the object of my Amendment to deal with this. It seems to me to be impossible for a bench of magistrates to give an order say to-day, and to say that that would be a proper order in fifteen years. An order for 10s. a week now when a child is three or four years of age would be inadequate when a child is eleven or twelve. Circumstances vary, and under this Amendment, suppose the justices made an order which was perfectly fair, it would be open to the mother in the event of a serious alteration in circumstances taking place, to apply to a bench of magistrates for a new order, varying that which was made several years previously.

Sir G. CAVE

There is a provision in the Criminal Justice Administration Act, 1914, Section 30, which enables a bench of magistrates to vary an order, and that I am advised covers affiliation orders. Therefore the power exists already. The difficulty in this form of Amendment is that it gives power to one Court to vary the order of another Court, which would not be right.

Sir W. DICKINSON

It is proposed in this Bill that the variation of the old order should be in the discretion of another Court, in the place where the person is residing, and the Court which knows the conditions of the mother. Therefore it seems to me that the same considerations apply to the variation of an order. It is a great concession under this Bill to allow the Court which has jurisdiction in the place where the girl is to make the new order and I do not see any disadvantage in it at all. In all probability the Home Secretary is right when he says that these orders can be varied, but I was not aware of it. I believe that it is very rarely they are varied. I do not think that people know that they can get them varied.

Sir G. CAVE

It is a new Statute.

Sir W. DICKINSON

I doubt very much whether many of these poor girls know they can get the orders varied. On the merits of the case I know that sometimes these poor girls find it very hard to make both ends meet. The order is generally made in view of the amount the man can spare. If a man can only give 2s. 6d. that is all that is awarded. Afterwards, if he gets good wages and is able to afford a great deal more, it is essential that the woman should have the opportunity of getting the payment increased; and although I am glad to know from the Home Secretary that they will have this opportunity I cannot help thinking that it would be better to put it definitely into this Bill as suggested. Perhaps the Home Secretary will consider that point between now and Report stage?

Sir G. CAVE

I will do so.

Amendment, by leave, withdrawn.

Mr. KING

I beg to move, in Sub-section (2), to leave out the words "does not, and to insert instead thereof the words "shall to." I come now to another Amendment to which I have already referred in the course of this discussion. The only alteration in the bastardy law which has been made during the last few years is, I think, when in the year 1913 the Bill of the hon. and gallant Member for South St. Pancras (Colonel Sir H. Jessel) was passed, by which payments of the putative father which previously were made direct to the mother or other person entitled to receive them, are now to be made to an officer of the Court. The obvious reason for that beneficent change is this. It was obviously a good thing to break the personal relationship between father and mother, and that the legal association ought not to be perpetuated by a constant interchange of personal relations, payments, letters, receipts, and so forth. Since that time these payments are to be made through an officer of the Court, who receives them from the father who has to pay and transmits them to the mother or other person entitled to receive. Now this Clause says that the only person who does not make an application to the Court for an increase of the amount is to be this collecting officer. The collecting officer seems to me to be just the person who very well might apply for an increase. He knows the circumstances, he is very often a clerk of the Court, and is connected with judicial administration. He is accessible to persons from both sides, both the father's and the mother's side, and I should have thought that he would have been the very person who would best know the circumstances and who, without causing any difficulty or bringing the different parties into Court, might make the application to the Bench and get it put through. I was therefore surprised and disappointed to find that this collecting officer is not a person who might apply. I propose, therefore, to alter that by moving to omit the word "not." I hope I have made my point clear, and I hope that I have not so misjudged the usual relation of these officers to the other parties as to suggest a solution of this question which is not practicable or not possible.

Sir G. CAVE

I am impressed by the arguments of the hon. Gentleman, and I think there is something in allowing the application to be made by someone other than the person who came to the Court in the first instance. I should like the hon. Member to withdraw his Amendment now, and before the Report stage is reached I will see whether there is any practical objection to effect being given to what he says.

Mr. KING

I am very much obliged to the Home Secretary for having met me in this way. Allow me, however, before I withdraw the Amendment, to say that I do not think the London magistrates are always right on this sort of thing. London magistrates have a particular and definite point of view rather different from that of ordinary magistrates. I do not want to say it offensively, but they represent officialism, and naturally officials at a time like this take a somewhat different view of these applications I beg to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause, as amended, ordered to stand part of the Bill.

Clause 2 (Short Title and commencement) ordered to stand part of the Bill.