§ Sir M. MACNAGHTEN
I beg to move, in page 2, line 6, to leave out paragraph (a).
The Bill proposes to modify in a very important respect the provisions of the principal Act of 1895. Under that Act, where a married woman has obtained a separation order and subsequently has been guilty of adultery, the almost universal rule has been adopted, that that act of adultery should have the effect of wiping out the separation order. Now it is proposed that the Court should have a discretion, and should be able to say that, although the separated wife has committed an act of adultery, nevertheless the Court may be able to absolve her from the consequences of that act and allow the separation order to be maintained. I think all Members of the House will agree that this is a very serious question, and one which affects the life of people in a very important respect. The sanctity of the marriage tie, having regard to the moral considerations which are involved, is of the greatest importance. I cannot help thinking that this paragraph has been put in without sufficient consideration, and that if my right hon. Friend the Chancellor of the Duchy of Lancaster will give it his attention, he will see that it really is not in conformity with the rest of the Bill. There is something to be said for the view that, if a woman has been separated from her husband by his fault, and has obtained a separation order, and if, after that, there is adultery, it is really her husband who is to blame in the matter, because he, having failed in his duties as a husband, is really the responsible person. If the House were to adopt that view, and if the promoters of the Bill were to adopt that view, then they would have provided—and I am not sure that I 1685 should not have been prepared to accept it—that in every case where an application was made by the husband to discharge the separation order on the ground of subsequent adultery, it should be within the discretion of the Court to say whether the order should be discharged or not.
If it were proposed to give the court a discretion in every case—a discretion which, of course, they have not got under the Act of 1895, because under that Act, on proof of adultery, the separation order has to be discharged—if it had been proposed to give the magistrates discretion in every case, there would have been much to be said for it, and I think I should have supported it; but that is not what this Bill proposes. It proposes to give the magistrates a discretion in cases where the adultery has been conduced to by the failure of the husband to make the payments that he was directed to make. I appeal to the House as to whether this proposal is not one that is grossly insulting to the whole sex. A woman may commit an act of adultery for love, or she may commit it for money. If she does it for money, then the promoters of the Bill suggest that the magistrates should have this discretion; but if she commits it from what I suppose everyone would agree is a higher motive, or at any rate not from a mere pecuniary motive, then the court is not to have any discretion, but only in cases where the adultery has been conduced to by the failure of the husband to make the payments. That must mean that the woman, not having got the payments from her husband, has had to commit an act of adultery for the purpose of obtaining the money which her husband ought to have paid. I appeal to the House not to pass the Bill with this insulting provision in it. I will support it if you will make it a discretion in every case, but do not only give the magistrates a discretion where the woman has sold herself for money.
§ Mr. GREAVES-LORD
I second the Amendment, for very much the same reasons as my hon. and learned Friend has Moved it. I am very strongly of opinion that, except in cases where there is very exceptional ground for it, it is quite a wrong thing that a woman should be living in adultery with one man and supported by another, and therefore the prima facie principle is right that when 1686 a Separation Order has been made and the wife has subsequently committed adultery, that should be a ground for discharging the Order. But that is very far from saying that should be the case in every case where a woman has subsequently committed adultery. One can quite understand that there may be circumstances where a woman who is living apart from her husband by reason of a Separation Order which she has obtained on account of his misconduct may be led by the conduct of her husband into committing adultery, but this proviso presupposes that the most effective way to give relief to a woman under those circumstances is that that relief shall be given solely where the husband has failed to make payment under the Maintenance Order. I assume, and everyone I think assumes, that the Bill is intended to give real relief to women, but I cannot understand that, except in a very extreme case, would the failure to make payment under a Maintenance Order conduce to adultery. After all, a woman who has obtained a Maintenance Order is usually a woman of respectability and one to whom character is extremely dear and whose honour is something that she prizes, and is it going to be supposed that you are giving any real relief to that woman by saying that in circumstances which would be the very last in the world in which she would ever commit adultery the Court shall not have power to discharge the Order, but that in other circumstances which she may be led into, really without any very great moral sin on her part, the Order is not to continue?
Let me give one small illustration which I think can very well be imagined. A woman has got a Maintenance Order, her husband being a man of evil character and evil disposition. He knows that adultery by the wife will be a ground for discharging that Order. He wilfully suggests to other men that they might attempt to make that wife their friend. He wilfully puts other men in the way of meeting her, which he may very well do although living apart from her, and he may put other men in her way, and the circumstances may be almost irresistible, although all the time he is keeping up his payments under the Maintenance Order. Even if this Clause passes, directly that woman has committed adultery under those circumstances, the Order could and would be discharged by the magistrate, 1687 and this Sub-section gives him no power to refuse to discharge the Order. The only case in which a magistrate here can give a discharge is where it conduced by the failure of the husband to make any payment.
§ Sir G. HOHLER
Would not that be met by Sub-section (2) of Clause 1? This would be a case in which the husband conduced or connived at the adultery.
§ Mr. GREAVES-LORD
No. Subsection (2) of Clause 1 deals merely with prostitution. We are dealing here not with prostitution at all, but with something which is very far removed from it. We are dealing here with the fact of adultery, a single Act being quite sufficient, and under these circumstances we are pretending that we are giving a real protection and relief to women when we are providing that in one instance only the Court may refuse to discharge it, and that instance is one which, practically speaking, to many respectable women will never happen. The whole thing is an absolute pretence, and unless you are going to give a full discretion to the magistrates to discharge, or not to discharge, an Order which has been made for maintenance you are not giving any relief to those to whom you are purporting to give relief. If it is to be made dependent upon the conduct of the husband, there is some ground for saying that then surely the words should be wider and should show that the husband had conduced to the adultery, and not that it had been conduced to merely by one species of conduct on the part of the husband, namely, failure to make the payments.
§ Colonel WEDGWOOD
I hope, in spite of the very eloquent speeches which have been made, that the House will not accept this Amendment. It is really a question which is almost vital to the Bill because it is not a Bill of morals but a Bill seeking to establish the economic position of the woman. The hon. and learned Gentleman the Member for Londonderry (Sir M. Macnaghten) drew an affecting picture of the different way in which a woman who commits adultery is to be treated. If she commits adultery for love she is not to have any rights. If she commits it for money she is to have rights. That is not the right way of look- 1688 ing at this Bill. We want to see that the woman is supported. The children of a wife who has obtained a Separation Order are probably dependent upon the money got week by week from the defaulting husband. If those means are cut off she may be able to get work, but if the children are young she may find it very difficult, and she may be driven into the position of having to sell herself. It is against cases of that sort that we want to protect those women. If, as the result of cutting off the weekly payments, she is driven on to the streets then you say that man henceforth shall be exempt from having to pay these weekly contributions any more We want to stop that. (Interruption.) Undoubtedly as it is at present an act of adultery discharges the Order and relieves that blackguard from any further need of having to pay the contribution. We want to stop that and we do it by paragraph (a). We say that if the adultery has been caused by withholding of the contributions by the man against whom the Order has been obtained then that shall not be regarded in itself as sufficient to cancel the Order. The hon. and learned Member opposite says that if the woman commits adultery for love she gets no rights. Let us remember that where the woman lives with a man and they love each other, the man supports her. That is a question of economic support. It would be unjust that where a separated wife goes to live with another man, the original husband should be forced to contribute to her. She has transferred her affections and herself and her care to another man. Therefore, I do not think we have a right to prevent the original husband getting a discharge of the Order. It is a question of the hard facts of daily life and not the sentimental picture of the virtuous or the non-virtuous woman. Under these circumstances, I hope the House will pass the Bill as it stands, subject to a further Amendment which we propose to accept.
It struck me, and it struck the promoters of the Bill, that there might be many cases where a husband against whom an order has been obtained is absolutely incapable of making the payment. He may have become a cripple, or may have lost his work. There may be dozens of reasons why the man is not able to make the payments. Cases such as that should not be 1689 charged with having wilfully withheld the money which would keep the woman off the streets. Therefore, we propose to accept an alteration which will leave out words "any payments which he was required", in lines 9 and 10, and substitute after the word "make", the wordssuch payments as, in the opinion of the Court, he was able.I think that gets over the snag as I see it. Otherwise, I hope the House will pass the Clause as it stands, in order to give this real economic protection to these women.
§ Sir ELLIS HUME-WILLIAMS
I support the Amendment. Apparently the idea of the Bill is that you are, for the first time, taking into consideration when this system of consideration is being carried out the question of conducing to adultery. The law in England is that if a wife is charged with adultery by her husband it is a defence for her to say that her adultery has been conduced to by her husband. It is not a very easy defence to establish. It starts by the admission that adultery has taken place. Then the wife seeks to excuse it by saying that the husband has conduced to it by his cruelty or by his desertion or by half-a-dozen other things which might be mentioned. If you are going to apply the divorce court law under this Bill, you should do it in its entirety. If you are going to relieve the woman from the consequences of her adultery, assuming that she can prove that this consequence flows from her husband's conduct, I do not see why you should confine it to the fact that he has not paid certain sums of money.
There are several other reasons that have to be taken into account. If she succeeds in establishing the fact that in one of half-a-dozen ways her husband has conduced to her offence, then she is relieved from the consequences of that offence, and I cannot help saying that it is not a very wise thing to specify one reason only which is to constitute the fact that the husband has conduced. Why confine it to one thing only when there are in law at least half-a-dozen? If you are going to relieve her at all, why not rely upon the well-known and established rules which have been considered in the Courts for years? It is a very difficult subject. Love has nothing to do with it. It is not, as was suggested by the hon. and learned Member for Norwood (Mr. 1690 Greaves-Lord) a question of the affection of the wife for the adulterer. It makes no difference to the Court whether she has an affection for the man with whom she committed the adultery or not. You are not considering the question of the wife in that respect, but the question of the conduct of the husband. The fact that the wife has committed adultery apart from the conduct of the husband has nothing to do with it.
§ Mr. GREAVES-LORD
I do not want it to be thought that I put it entirely upon the conduct of the wife. I said that we ought to make the provision in regard to the conduct of the husband very much wider, in order to cover very much wider cases.
§ Sir E. HUME-WILLIAMS
I understood my hon. and learned Friend, in very moving terms, to point out that there might be an excuse for the woman if she had a real affection for the adulterer. In the class of life with which these orders chiefly deal we have certain material facts to consider. Take the case of the miners, or other people who go out to work in shifts. There you must have some woman in the house. The man goes down the mine, and generally he has lodgers living in the house with him. Someone has to cook the meals and look after the household duties. I have had some experience of miners and of the working classes and I know that you cannot have men living in a house and doing their work in shifts, either in the same shift or in separate shifts, unless there is some woman who lives in the house and looks after it and cooks the meals. She may be the wife of one of the men, or she may be a woman separated from her husband. There is a great temptation for a woman living under a separation order in a case of that sort, because there is so much demand upon her, more particularly if she is experienced in household work.
You have to deal, not simply leniently and generously, but very justly with women who, in circumstances of that kind, and being separated from their husbands are living in what may be adultery, or, at any rate, keeping house for some other man. You have to treat them on a different principle altogether from that which you would apply to a woman living in adultery with a man for her own carnal pleasures, purely and 1691 simply, or, in a worse case, where a woman is living in adultery with a rich man in order that she may live a life of luxury. These circumstances do not apply in the class of life dealt with under this paragraph. Therefore, I appeal to the Chancellor of the Duchy to see whether he cannot simplify this Clause by saying that such act of adultery was conduced to by the husband, instead of specifying the one condition about nonpayment. If that be done it will leave it open to the magistrates to consider, not merely what is the present law, but that there are other acts of the husband which may have conduced to the adultery of the wife and which will also be in her favour.
§ Mr. DODDS
The discussion upon this Amendment has moved considerably from the merely negative attitude adopted by the mover and seconder in the first instance. One gathers from certain perambulations around the House that efforts are on foot to further amend this Clause. I do not know that I should intervene in this Debate except to answer the statement which was made by the mover of the Amendment that this Clause as it stood was insulting to the woman. It seems to be agreed that the Clause as it stands is insufficient, but I hardly think that that criticism of it is enough, unless we have something to substitute for it, and I hope the House will adhere to the Clause as it now stands in order that we may get something in place of it, possibly before the Bill leaves this House, or when it comes from another place. It does go in the right direction in the way of giving facilities to the woman which she has not had in the past. The present position is that, though the man himself who is separated from his wife may be living in adultery, yet if the woman makes one slip she is debarred for all time from obtaining benefit under an order previously obtained. The Amendment is purely negative, and I hope we shall not sacrifice what is given in this Clause. One feels that the negative attitude adopted by the mover of the Amendment should be resisted strenuously on behalf of justice towards the woman. Though it may not be complete justice, it is at any rate a move in the right direction, and I hope that the House will adhere to the Clause as it stands.
§ Mr. CASSELS
This Clause as drafted is put about as badly as it could be, and I am anxious to see that there shall be this protection for women if they have got the order. The hon. and learned Member for Bassetlaw (Sir E. Hume-Williams) said that the position is that, when an application is made for an order, the adultery of the wife can be answered by showing that it has been brought about by the conduct of the husband. It is the defect in the principle of the Act which it is sought to remedy by this new Clause. That is a defect no one can deny, because, having got the order, a married woman may have it taken away from her by the husband upon his showing that the wife, since the making of the order, has committed an act of adultery, and it is no answer for her to say, "He has not paid me." It is no answer for her to say, "If I have committed an act of adultery, so have you." It is no answer for her to say, "You are living in adultery and now you come to this Court and complain of my one act of adultery." Therefore something ought to be done in this new Bill for the purpose of providing the woman with an answer to the husband who seeks to get out of his liability by merely proving that an act of adultery has been committed by the wife who has been separated from him by an order of the Court.
Therefore I suggest that there should be something said by way of introducing misconduct, and conduct conducive, in order to provide that protection. The use of the word "failure" alone, unsupported by any other word, is wrong, because a wife may come along and say "The act of adultery was committed by me because my husband did not pay." Under this Clause, as drawn, it is no answer for the husband then to say, "I could not," as it must be a wilful failure on the part of the husband to carry out the terms of the Order. The word "withholding" is not exactly the same as "failure." That would mean a wilful failure to pay. "Failure" simply may mean that he was unable to pay. Yet if a wife said that she had committed an act of adultery because she had no money to support herself surely the position would be a very serious one under the Clause as it exists now. Therefore I appeal to those in charge of the Bill so to amend this Clause as to 1693 provide, (1) for the wilful failure to pay, and (2) for the misconduct in bringing about the adultery of the wife.
§ Colonel WEDGWOOD
I am sorry to intervene in this debate, but I want to apologise to the hon. and learned Member for Bassetlaw (Sir E. Hume-Williams) for not being able to listen to the whole of his speech. I did hear the major portion of it, and I am fully seized of the point which he wished to raise. It was suggested that the specific reason for releasing the woman from the bar which adultery puts upon her is not enough, and that the terms should be general terms so that the adulterous wife may be protected on grounds other than the stoppage of her allowance. What we want to do is to secure the due payment of her weekly allowance. It would be infinitely preferable that that should be specified as the determining factor as to whether the order should be rescinded or not. If the wife can say: "Owing to non-payment of my allowance, I have been forced on to the streets," that will really make her position much stronger than if the matter were left in general terms as to the misconduct of the man. If the Clause specifically pays attention to that one point, the payment or non-payment of the allowance, it is likely to give a much better chance for the women than if the Court be directed to take every consideration into account.
§ Colonel WEDGWOOD
There is some maxim in law that if you state a particular point you are much more likely to get attention for it than if your wording is so general as to take in other points. Therefore I would beg the promoters of the Bill to stick to that which is in the Bill. I have consulted the specialists at the Home Office on this question, and they are in favour of the words proposed by the hon. Member for Nuneaton (Mr. Willison), and the words in the Bill as against the suggestion of the hon. and learned Member for Bassetlaw. For that reason I would urge the people who really have the interests of these women at heart, and want to see the separation money paid, to support the Bill as it stands, and then subsequently to support the hon. Member for Nuneaton. I hope that we may soon come to a decision, for 1694 there is a great deal still to be done in connection with the Bill.
§ Sir W. MITCHELL -THOMSON
I hope, too, that we shall progress with the Bill, but I was very sorry to hear the speech of the right hon. Gentleman who has just spoken. I quite recognise that here again we have got rather into a tangle on the question of procedure, and that, owing to the form in which the question has been put, it is impossible now to amend the Clause in the way suggested by the hon. and learned Member for Bassetlaw (Sir E. Hume-Williams), because we have now passed the words which he would wish to omit. The Clause as he would wish, and I would wish, to see it would read like this—…if the Court thinks fit,I should not have risen at all but for the speech of the Chancellor of the Duchy, which appeared to me rather to discourage the suggestion that at some future time in another place the Clause might be amended as we desire. Before the Bill reaches another place I hope that the right hon. Gentleman and the promoters of the Bill will seriously consider the point which has been raised. The right hon. Gentleman quoted a legal maxim. The only legal maxim which really applies in this case is,
- (a) refuse to discharge the order if, in the opinion of the Court, such act of adultery as aforesaid was conduced to by the husband and
- (b) "Inclusio unius exclusio alterius est.If you specify this single cause, which the right hon. Gentleman has called the economic cause, you thereby exclude every other cause. You remove from the woman those pleas which are open to her now in the Divorce Courts; you remove from her the chance of putting forward those pleas. I do not believe that the right hon. Gentleman wishes that to happen, and I doubt very much whether the promoters of the Bill wish it to happen. I am afraid that, owing to technical considerations, we cannot well deal with the matter now, but I hope that the speech to which we have just listened is not to be taken to mean that the right hon. Gentleman and the promoters of the Bill have finally closed their minds on the subject, but that they will reconsider the matter.
Captain TUDOR REES
I want to join in the appeal which has just been made. I am all in favour of this Bill, and I do not support this particular Amendment, but if the Amendment were carried, other words might be introduced in another place. The hon. and learned Member for Bassetlaw made a speech which contained very valuable suggestions. After all, one must give very serious consideration to suggestions made by an hon. and learned Gentleman of such vast experience in the Divorce Courts. We have heard from all sections of the House that this is a Bill for the protection of women. I want to give the women who will be protected by this Measure full protection, and I would be very glad if the right hon. Gentleman would take such steps in another place as would make sure that the restrictions now imposed by this Clause are removed.
§ Sir G. HOHLER
I have listened attentively to the Debate on this Amendment, and I am satisfied that the right hon. Gentleman the Chancellor of the Duchy is right. I do not wish it to be thought that on this side of the House we are necessarily all of one opinion. I hope that the promoters of the Bill will stick to their words and take a Division on them, if necessary.
§ Mr. L. JONES
The House has shown a general disposition to widen this Clause, but, on the other hand, the hon. and learned Gentleman who has just spoken and the speech of the Chancellor of the Duchy are very convincing. As to the procedure, there would be nothing to prevent our adding at the end the words "or for misconduct on the part of the husband." The House ought to accept what the Chancellor of the Duchy has said, namely, that he will consider the widening of the Clause before it gets to another place. I agree that it would be a good thing to include these wider reasons on behalf of the women, but, on the other hand, I think it essential to retain the words in regard to non-payment of the allowance, and I hope that that will be the course taken.
§ Sir W. MITCHELL-THOMSON
I appreciate that the hon. Member wants to include these wider considerations, 1696 but if he specifies one and then wishes to add general grounds he will have to specify each and every one of those wider considerations.
§ Mr. JONES
I do not think that that is necessary. I think it would be most unwise to accept the Amendment suggested, and insert the words "conduced to by the husband," without specifically mentioning the non-payment of maintenance allowance. I hope that the Government will be perfectly firm, while consulting their advisers to see if they cannot find words to meet the object in view. I do not think it follows that because the inclusion of the one means the exclusion of the other, the inclusion of one, plus general words, could be held to exclude the others.
§ Captain BOWYER
I was greatly impressed by the speech of the Chancellor of the Duchy, and I believe he is right. One fact and a very important fact which the House seems to have forgotten is that this Sub-section is dealing with people who are living under a separation order, and really the only connection between the man and the woman is the payment of money. Therefore, if you want to help the woman it is undoubtedly true that you can best help her by addressing your mind towards the actual payment of the sum by the husband to the woman. Although I had drafted a form of words in order to widen the scope of the proposals, I believe the Bill as it now stands is in the right form, and I hope it will not be widened when it goes to another place.
§ Mr. WILLISON
I would not detain the House at all but for one thing, and it is that hon. Members opposite do not appear to be in possession of the exact law as it stands so far as the summary courts are concerned. The present position is that if a woman applies for an order, although the husband might set up adultery as a defence, she is entitled to her order if she can prove that he conduced to it. Under the proposal which has been made, the position would be if she got the order and if, afterwards, by his conduct the husband conduced to adultery she would have no protection. He would only have to prove her adultery, and the order would go. I say that is wrong, and I urge the promoters to stick to the Clause as it stands, subject to the condition 1697 which the Chancellor of the Duchy said he would accept. That brings the position of the woman into line with what her position would be before an order was made, if the husband conduced to adultery.
Question, "That the words proposed to be left out to the word 'any' in line 9, stand part of the Bill," put, and agreed to.
§ Mr. WILLISON
I beg to move, in page 2, lines 9 and 10, to leave out the words, "any payments which he was required," and to insert instead thereof the wordssuch payments as, in the opinion of the Court, he was able.I do not think I can take up any time in connection with this Amendment, as the Chancellor of the Duchy has said that these words would be accepted, and I think the reason for their insertion is evident to the House.
§ Amendment agreed to.
§ Mr. GREAVES-LORD
I beg to move, in page 2, line 14, after the first word "wife," to insert the wordsor shall be committed to some other person.
§ Colonel WEDGWOOD
On a point of Order. I submit that this Amendment and the two subsequent Amendments are out of Order. This is one of a series of Bills dealing with separation and maintenance orders, and the words which these Amendments propose to embody deal with the guardianship of infants. I submit such Amendments would be more appropriate under the Guardianship of Infants Bill which is before Parliament at the present time. They introduce an entirely fresh element which does not come within the scope or the title of the Bill, and, in any case, I think it would be undesirable in this Bill to mix up two different subjects.
§ Sir G. HOHLER
I say nothing about the desirability or otherwise of including these words, but surely this Amendment is in order. The Bill, in terms, provides for the custody of the children and the court may make an order as to the custody of the children.
§ Sir W. MITCHELL-THOMSON
May I draw attention to the fact that Clause 6 of this Bill deals with the custody of children and the enforcement of orders as to custody and with nothing else?
§ Mr. DEPUTY-SPEAKER (Mr. Entwistle)
I have considered the point of Order, and I cannot see that the Amendment goes beyond the scope of the Bill.
§ Mr. GREAVES-LORD
The reason for this Amendment is quite obvious. One has to consider the position which arises when a case of this kind comes before the Court. In the first place, take the case of a wife who obtains a maintenance order against her husband on the ground that he has been guilty of persistent cruelty or desertion, or something which makes him an undesirable person to have the custody of the children. A ground for discharging that order would be misconduct by the wife, and circumstances under which the magistrates might refuse to discharge the order, would be that the wife possibly without any conduct on the husband's part conducing to it, had committed adultery and was herself an undesirable person to have the custody of the child. In such circumstances the position is that to discharge the order prima facie would send the children back to the husband, who is admittedly, by reason of the order having been made, an undesirable person to have custody. The only alternative would be to give the children to the wife, who is also prima facie an undesirable person. Surely there ought to be power for the magistrates to commit the children to the custody of some other person who would be desirable. It has been said that this Bill was originally promoted by the Six Point Group. I understand one of the societies behind it is the National Union for the Promotion of Equal Citizenship. I do not think there is very much chance of a child being brought up to citizenship of any kind in a case where the only alternative is between committing that child, on the one hand, to an undesirable father, or, on the other hand, to a woman who has also shown herself to be an undesirable guardian.
§ Sir G. HOHLER
I beg to second the Amendment.
The only difficulty which I see in regard to it was indicated by the objection to the Amendment taken by the Chancellor of the Duchy, but I do not think, though I have not all these Bills 1699 before me, that this proposal in any way interferes with the other Bills. It is quite true that the other Bills deal with very similar matters, and seek to raise the position of the wife and give her, not only economic independence, but equal rights with regard to the children. It seems to me that, as a magistrate, if I were dealing with this question, I should say that the only power that I had under this Clause was to make an order that they should continue to be committed to the wife. If the woman had committed adultery, and it had not been due to the non-payment by the husband, I might think it would be most undesirable to continue to commit the charge of the children to the wife, and yet I should have no other power, and I am assuming in this case that the wife already had the custody of the children. In these circumstances, the Amendment proposes to give the magistrate discretion, not only to continue to commit the charge of the children to the wife, but to commit them to the charge of any other person whom he might think fit. Surely that is right, and I cannot think that any other legislation will conflict with what, in my judgment, is so fair and reasonable. It may be that the magistrate may take the view that, notwithstanding what the wife has done, it is in the best interests of the children, having regard to all the circumstances of the case, that he should continue the custody of the wife in regard to them.
On the other hand, he might very properly take the view that it is not desirable at all. We know that there are many people and many philanthropic societies who will take charge of these children and look after them, and he might be very desirous of committing the children to such a body. I think this power should be given to the Court by the Amendment, and I cannot see that any other Bill which is in progress, such as the Guardianship of Infants Bill, could conflict with such a power. On the last Amendment I took the view of those who moved the Amendment, but when I heard the Chancellor of the Duchy against it, he convinced me that he was right, and it may be that he will convince me again now, but, subject to that, and having thought it out, it seems to me that this is a right Amendment, and I shall listen 1700 with very great interest to what the Chancellor has to say.
§ Colonel WEDGWOOD
I do hope that in this case also I shall convince my hon. and learned Friend the Member for Gillingham (Sir G. Kohler). I will not deal with the point that I raised before, although I still think that it is more important that questions regarding the custody of children of this nature should be dealt with in the Bill which deals with the guardianship of infants, and not in the series of Bills dealing with separation and maintenance orders. Apart from that, however, I must say that I am surprised to hear hon. Members, pillars of the Conservative party urging what, in fact, is the nationalisation of children.
§ Colonel WEDGWOOD
The hon. and learned Member knows as well as I do myself that really, even though a parent may be immoral, he or she is probably the best guardian for the children and the best person to bring them up, and, apart from the interests of the children, the children themselves are the most reforming influence on the parent who has gone wrong. Whether, therefore, we are to consider solely the interests of the children or those of the parents as well, I hope we shall leave the children with their parents who have gone wrong, and not enable the State to take them away from the parents and hand them over to some philanthropic institution, which may mean well, but which really is a sort of dead and dreary affair for the children. I think I would rather be brought up in a slum than handed over to "parents" of this description. With that in view, I would ask hon. Members, although the Government do not take an official view of this matter, to stick to the Clause as it is.
I think the Chancellor of the Duchy said something which he did not quite mean when he talked about dead and dreary institutions, because really, as he knows, there are institutions in the country which are splendid for children, and where really the children are splendidly looked after and taken care of. We all know of such institutions.
I am sure the right hon. Gentleman did not mean to make any reflection on institutions where children are brought up really sometimes far better than they would be at home by undesirable parents.
§ Sir M. MACNAGHTEN
I think the Chancellor of the Duchy does not appreciate what this proposal is when he talks about nationalising children by sending them to institutions, because that is not at all the proposal of this Amendment. The case that we are contemplating is the case of children whose father has so misconducted himself that the wife has obtained a separation order. The wife, having obtained a separation order, has anyhow been guilty of one act of adultery, and the question is what is to be done with the children. I hope the Chancellor, when we come to an Amendment at a later stage, will agree that in these circumstances the Court is to be guided mainly by the consideration of what is the interest of the children. I hope we can appeal to his stony heart on on that point. Here is a case where a man and a woman have brought children into the world, and have both made a mess of their own lives. Here are these young children, and surely the Court ought, in considering what is to be done with them, not merely to have regard to the interests of the father or the mother, but principally and primarily to the interests of the children, and that is all that we are asking by this Amendment. All that we are asking is that the Court should have power, in a proper case, to commit the care of the children to some person other than the father or the mother. There may be a grandmother, a maiden aunt, or some other near relative—I am not thinking of the institutions to which reference has been made—who may be in a position to take the children in, who may have children of their own, and they may all form a very suitable and convenient family. We have all, I suppose, had experience of cases where such arrangements have been made for children to live with some other member of the family.
Why does the Chancellor of the Duchy refuse to allow the Court to have discretion—that is all we ask—to allow this really excellent arrangemement to be made for children to be put under the care 1702 of some relative or other? It does not compel the Court to send the children away. If the Court thinks it best for the children to live with the father who has misconducted himself, or the mother who has misconducted herself, I agree, It may be better for the children to live with the mother who, so far as her children are concerned, may be the best person to look after them. But there are cases where it is much better that the children should be with somebody else. The best thing for the children is that they should live with people who really care for them, and it may be that the mother, although she has misconducted herself, is that person. It may be that she is one of those people who really do not care for her children. On the other hand, there may be others who would give to the children all the mother's love they have lost, and yet the Chancellor refuses to accept this Amendment. I do appeal to the House to support it.
I rise to support with all earnestness the appeal of my hon. and learned Friend. If this were a proposal to compel children to be handed over to institutions, I should go all the way with the right hon. Gentleman, because I think it is better for the child to live with a loving parent, however disreputable, however slummy the surroundings in which the home may be, than to be taken to an institution where it has none of that which is the sunshine of the child's life, namely, parental affection. There are, unfortunately, cases where this parental affection does not exist. My hon. and learned Friend, and those of us who have done social work in all classes of society—I am not limiting it to one class—have, unfortunately, come across cases, and I am sorry to say not a few cases, where the parents are so intent upon doing that which is anti-social and anti-Christian, that, is, living their own lives, that they are entirely forgetful of the lives, the prospects and welfare of others, and entirely forgetful of the lives, the prospects and welfare even of their own children, and you can see almost any time, not only in this class of society, but in other classes, cases where the husband is off with another woman, the wife is off with another man, and the children are totally neglected and are suffering from an entire lack of care. In the upper classes—I say 1703 "upper," but I do not use the word in any sense invidious to any other class; I mean the wealthier class—they are left to servants, very often with no particular benefit to the children, unless they happen to be left in the charge, as is sometimes the case, of a really good nurse, some careful, good woman who will look after them.
In the class with which this sort of Bill deals, how are they left? Very often, except for the casual charity and casual benevolence and good-will of some kind woman in the neighbourhood, they are thrown into the gutter, and I say that when you come across these cases, and when they come before the Court, in any case where there is nobody who cares enough for the child, very often, to bring an action, which would be speedily brought in the case of a wealthier child in the Court of Chancery, you ought to have some power in the hands of magistrates to say, "We will commit this child to the care either of a relative or of some good woman", and the magistrates and missionaries of the Court are likely to know people of that kind who will take this child and will give it not, it is true, the exact equivalent of a mother's love and a father's affection, but, at any rate, will give it the best substitute that can be obtained.
This is a thing very near my heart. I have long been working in the cause of children. This matter is one in which, I hope, I have not talked what is called "sob-stuff." What I say is, that although it will be more logical, possibly, to have a separate Bill, or to put a Clause of this sort into another Bill, yet when we have the chance to do something for these children, for Heaven's sake let us do it. I feel so strong about this that I am going, if I can get anyone to tell with me, to divide, in favour of this Amendment. Hitherto I have refrained, because I am anxious to see this Bill go through, Upon the whole, this is a good Bill, and it is a well-intentioned Bill, but let us make the Bill as good as possible. Do not let us say that we will put in a Clause which is not as good as possible, because we want the Bill to go through. If the Chancellor of the Duchy will promise that, if it takes too long now to insert the Amendment and the consequential Amendments, he will get it done in another place, I am 1704 willing to accept that, because I feel quite certain that in another place an Amendment of this kind would be assented to without the slightest discussion. I do appeal to him, and to all Members of this House, to make the Bill as good as possible, and I am sure it will not be as good as possible if the only alternatives you leave to the magistrates are that they shall continue the guardianship of children in the woman who is so unworthy that they have cancelled her separation order, or, on the other hand, pass them over to a father who is a brute and a blackguard, unfit to have the charge of children.
§ Mr. HOPE
I desire to say one word in support of this Amendment.
We have listened with some interest to what I can only call the aboriginal, atavistic outburst of individualism on the part of the Chancellor of the Duchy. Rather than these children should be committed to an institution—it may be a State institution—the right hon. Gentleman is willing to have them committed to the custody of one or other parents, both of whom are ex hypothesi disreputable. As has been pointed out, there is no reason at all why the institution should come in at all. Very often there is an aunt, or some other person who is the natural person to take them. I say you will put the law in a wretched position if you only give discretion to commit the child to one or other disreputable parent. This Amendment should be read in conjunction with a subsequent Amendment to provide that the Court shall have primary regard to the interests of the children, and if the Court has to choose between two disreputable parents, it cannot have that regard. I trust my hon. Friends will press this to a Division.
§ Mr. L. JONES
I hope the House will not be misled in regard to this Amendment, and it is most important that it should not be. The hon. and learned Member opposite talked about it being a woman's question, but there is no proof at all that the women to whom we are referring do not love their children. If the hon. and learned Gentleman knew anything about it he would realise that the love of their children is often one of the strongest motives in influencing their lives.
I said nothing of the kind. I contended nothing of the kind. I am well aware that many women in the class of life with which this Bill deals have as much affection for their children as any other class, and very often more.
§ Mr. JONES
If I misrepresented the hon. and learned Gentleman I withdraw at once; but I wish the House to realise, in dealing with the children of the women where an order has been discharged, that the suggestion that that class of people do not care is wrong. They care very much. I really think that the love of the mother for the children makes up for a great many other things.
There is another point. I do not think it is well to widen this Bill by bringing in a number of matters which do not immediately touch the point at issue. The case of the child, or children, of the woman who has got an order from the Court, and that order is subsequently discharged, is only one amongst many cases where the children are in the position where somebody has to look after them. If you want to deal with all these cases together we need a
§ Children's Bill; meanwhile this is one particular case which should be dealt with because it does arise under this Bill. This Bill is a small Bill to remove certain definite injustices which have been inflicted upon women under the present law. As I understand it, as the law now stands in this case, where an order is discharged the children go back to the father. It seems to me in that case the woman has as good a right as the man to have the custody of the children. What we are asking in this Bill is that the mother may be placed in the same position as the father. That is to say, that the Court shall decide in all the circumstances of the case whether the children should remain in the care of the mother or whether they shall go back to the father It is a small definite improvement in the rights of women in regard to their children, and I hope that, if in passing any other matter relating to the guardianship of children may have to be taken that we shall see to it that justice to women is done, and that the women retain the care of the children.
§ Question put, "That those words be there inserted in the Bill."
§ The House divided: Ayes, 59; Noes, 129.1707
|Division No. 129.]||AYES||[1.50 a.m.|
|Alexander, Brig.-Gen. Sir W. (Glas. C.)||Gilmour, Colonel Rt. Hon. Sir John||Perring, William George|
|Atholl, Duchess of||Greene, W. P. Crawford||Philipson, Mabel|
|Baldwin, Rt. Hon. Stanley||Hannon, Patrick Joseph Henry||Remer, J. R.|
|Balfour, George (Hampstead)||Hennessy, Major J. R. G.||Russell, Alexander West- (Tynemouth)|
|Barnston, Major Sir Harry||Hope, Rt. Hon. J. F. (Sheffield, C.)||Russell-Wells, Sir S. (London Univ.)|
|Benn, Sir A. S. (Plymouth, Drake)||Hughes, Collingwood||Samuel, A. M. (Surrey, Farnham)|
|Brass, Captain W.||Iliffe, Sir Edward M.||Scott, Sir Leslie (Liverp'l, Exchange)|
|Bridgeman, Rt. Hon. William Clive||Jackson, Lieut.-Colonel Hon. F. S.||Sinclair, Col. T. (Queen's Univ., Belfst)|
|Bull, Rt. Hon, Sir William James||Kindersley, Major G. M.||Smith-Carington, Neville W.|
|Burman, J. B.||King, Captain Henry Douglas||Spero, Dr. G. E.|
|Butler, Sir Geoffrey||Lamb. J. Q.||Sykes, Major-Gen. Sir Frederick H.|
|Cassels, J. D.||Locker-Lampson, G. (Wood Green)||Thomson, Sir W. Mitchell- (Croydon, S.)|
|Chamberlain, Rt. Hon. N. (Ladywood)||Lorimer, H. D.||Vaughan-Morgan, Col. K. P.|
|Clayton, G. C.||McLean, Major A.||Wells, S. R.|
|Cobb, Sir Cyril||Maenaghten, Hon. Sir Malcolm||Wheler, Lieut.-Col. Granville C. H.|
|Colfox, Major Wm. Phillips||Meller, R. J.||Windsor-Clive, Lieut.-Colonel George|
|Cope, Major William||Mitchell, W. F. (Saffron Walden)||Wise, Sir Fredric|
|Curzon, Captain Viscount||Mitchell. Sir W. Lane (Streatham)|
|Deans, Richard Storry||Morden, Colonel Walter Grant||TELLERS FOR THE AYES.—|
|Doyle, Sir N. Grattan||O'Neill, Rt. Hon. Hugh||Mr. Greaves-Lord and Sir Gerald|
|Eyres-Monsell, Com. Rt. Hon. B. M.||Penny, Frederick George||Hohler.|
|Ackroyd, T. R.||Bowerman, Rt. Hon. Charles W.||Davison, J. E. (Smethwick)|
|Agg Gardner, Rt. Hon. Sir James T.||Bowyer, Captain G. E. W.||Dodds, S. R.|
|Allen, R. Wilberforce (Leicester, S.)||Broad, F. A.||Dukes, C.|
|Aistead, R.||Brunner, Sir J.||Dunnico, H.|
|Ammon, Charles George||Buckle, J.||Edwards, G. (Norfolk, Southern)|
|Astor, Viscountess||Burnie, Major J. (Bootle)||Egan, W. H.|
|Attlee, Major Clement R.||Buxton, Rt. Hon. Noel||Gardner, B. W. (West Ham, Upton)|
|Ayles, W. H.||Charleton, H. C.||Gardner, J. P. (Hammersmith, North)|
|Baker, Walter||Church, Major A. G.||Gibbins, Joseph|
|Banton, G.||Cluse, W. S.||Greenall, T.|
|Barnes, A.||Compton, Joseph||Greenwood, A. (Nelson and Colne)|
|Batey, Joseph||Comyns-Carr, A. S.||Grenfell, D. R. (Glamorgan)|
|Bondfield, Margaret||Cove, W. G.||Groves, T.|
|Bonwick, A.||Crittall, V. G.||Grundy, T. W.|
|Hall, F. (York, W. R., Normanton)||Macfadyen, E.||Romeril, H. G.|
|Hall, G. H. (Merthyr Tydvil)||Mackinder, W.||Rudkin, Lieut.-Colonel C. M. C.|
|Harney, E. A.||March, S.||Sexton, James|
|Harris, John (Hackney, North)||Marley, James||Sherwood, George Henry|
|Hastings, Somerville (Reading)||Martin, F. (Aberd'n & Kinc'dine, E.)||Simms, Dr. John M. (Co. Down)|
|Haycock, A. W.||Middleton, G.||Simon, E. D. (Manchester, Withington)|
|Hemmerde, E. G.||Millar, J. D.||Snell, Harry|
|Henderson, Rt. Hon. A. (Burnley)||Mills, J. E.||Spencer, H. H. (Bradford, S.)|
|Henderson, T. (Glasgow)||Montague, Frederick||Stamford, T. W.|
|Henderson, W. W. (Middlesex, Enfld.)||Morris, R. H.||Stranger, Innes Harold|
|Hillary, A. E.||Morrison, R. C. (Tottenham, N.)||Sutton, J. E.|
|Hindle, F.||Morse, W. E.||Terrington, Lady|
|Hirst, G. H.||Naylor, T. E.||Thorne, W. (West Ham, Plaistow)|
|Hogbin, Henry Cairns||Oliver, George Harold||Thornton, Maxwell R.|
|Hudson, J. H.||Parkinson, John Allen (Wigan)||Thurtle, E.|
|Isaacs, G. A.||Pattinson, S. (Horncastle)||Toole, J.|
|Jackson, R. F. (Ipswich)||Perry, S. F.||Varley, Frank B.|
|Jones, Rt. Hon. Leif (Camborne)||Pethick-Lawrence, F. W.||Viant, S. P.|
|Kennedy, T.||Phillipps, Vivian||Warne, G. H.|
|Kenworthy, Lt.-Com. Hon. Joseph M.||Potts, John S.||Wedgwood, Col. Rt, Hon. Josiah C.|
|Kenyon, Barnet||Raffety, F. W.||Whiteley, W.|
|Lansbury, George||Raynes, W. R.||Wignall, James|
|Law, A.||Rea, W. Russell||Willison, H.|
|Lawrence, Susan (East Ham, North)||Rees, Sir Beddoe||Windsor, Walter|
|Leach, W.||Rees, Capt. J. T. (Devon, Barnstaple)||Wright, W.|
|Lee, F.||Richardson, R. (Houghton-le-Spring)||Yerburgh, Major Robert D. T.|
|Lindley, F. W.||Ritson, J.|
|Loverseed, J. F.||Robertson, J. (Lanark, Bothwell)||TELLERS FOR THE NOES.—|
|Lowth, T.||Robertson, T. A.||Sir Robert Newman and Lieut.-Col.|
|McCrae, Sir George||Robinson, S. W. (Essex, Cheimsford)||Williams.|
|McEntee, V. L.|
§ Mr. WILLISON
I beg to move in page 2, line 17, at the end, to insert the wordsSection seven of the principal Act shall have effect as though the words 'or any court in whose jurisdiction the married woman or husband shall reside' had been inserted.At the present time if an order is made, and the husband is in arrear with his payments, the wife may enforce it in any Court in whose jurisdiction she may reside. But although the parties may be living in an entirely different jurisdiction—they may originally have lived in the North of England and for some reason may now be living in the South—at the present time the applicant, in order to issue the summons, has to go to the Court where the original order was made. That affects both parties, but frequently the unfortunate woman is placed at a very great disadvantage, because if she wants an increased amount it may cost pounds to obtain it. Therefore I ask the House to agree to these words which only mean that the parties can go to any Court in whose jurisdiction the married woman or the husband shall reside, and I think that is a very necessary provision to make.
§ Amendment agreed to.1708
§ Mr. HOPE
I beg to move in page 2, line 17, after the words last inserted, to add the wordsIn making such an order the court shall have regard primarily to the interests of the children.This Amendment loses some of its importance because of the acceptance of the last Amendment. The interests of the children may easily be forgotten, and no harm can be done by the insertion of these words. I think it is just as well to remind the magistrates that they should have in view primarily the interests of the children.
I beg to second the Amendment.
Upon questions which affect the welfare of the children there ought to be one and one only guide to the Court, and that ought to be the interest of the children. That principle has been laid down for a very long time in the superior Courts and the Court of Chancery, and that has always been the principle upon which they have acted. Many hon. Members know quite well that the Judges in the Court of Chancery take any amount of trouble not only in those cases which come in open Court, but also in the case of private inquiries.
§ Amendment agreed to.1709
I have an Amendment in page 2, line 17, to insert the words "so long as she continues to maintain such child in a manner satisfactory to the Court."
I suggest that the words I have read have nothing to do with the previous Amendment. The intention and the purport of those words is that, although in the general interests—
§ Mr. DEPUTY-SPEAKER
It is not a question of whether it is the same thing. We have now inserted certain words, and the words suggested by the hon. and learned Member are not possible, after the words which have been inserted. Therefore, the Amendment cannot be in order.
§ Mr. HOPE
There seems to have been some fault in putting the Amendments down. It is not due to the way they are printed, but to some act of an official of the House, and not of any hon. Member. Under the circumstances might I ask whether there is any remedy, as, for example, the recommittal of the Clause? It is not the fault of the hon. and learned Member that his Amendment is different. The fault lies in the way the Amendments were put.
§ Mr. DEPUTY-SPEAKER
I am not making any comment on that point, but the hon. and learned Member had his remedy before the Amendment was put or called, and it is now too late to deal with it.