§ Where in any proceeding before any Court the religious upbringing of an infant is in question—
- (1) The Court shall take into consideration and, other things being equal, give effect to any contract which may be proved to have been entered into by the father and mother before marriage as to the religion of any children of the marriage, unless the performance of the contract has since the marriage been expressly or impliedly waived by both parties thereto;
- (2) If at the date of their marriage the father and mother professed the same religion the Court shall presume that the father and the mother entered into an implied contract that any children of the marriage should be brought up in that religion, and shall take into consideration and, other things being equal, give effect to such contract, unless the performance thereof has since the marriage been expressly or impliedly waived by both parties thereto.—[Mr. Hurst.]
§ Brought up, and read the First time.
§ Mr. GERALD HURSTI beg to move, "That the Clause be read a Second time."
The Clause is in no way antagonistic to the main principle of the Bill, but is intended to meet an impasse which the Bill undoubtedly produces. As the House probably knows, this Bill is not intended to legislate for the ordinary married couple, but only for cases where the husband and wife are on bad terms one with another, often where no fault is imputed either to husband or wife, but where they differ on the upbringing and education of the children. As the Bill now stands, in disputes of that sort all the Court is told to do is to regard the welfare of the infant without regard to the wishes of the father or the mother in priority to one another. This is an admirable first principle. But if the House would only consider for a moment, they would see that, in certain contingencies with which this amending Clause deals, it is impossible to decide questions which may arise upon first principles, and first principles alone. You may have a husband and a wife both of whom are 2328 unexceptionable as far as character is concerned, both of whom take the greatest concern in the welfare of their children, but who differ in regard to the religion in which the children should be brought up.
Take the case of one or two children of very tender years. No tribunal in the world could have the audacity to say that this religion or that religion is more for the welfare of the child than the religion of the other parent concerned, so that the only test laid down in the Bill as it now stands is inapplicable in these circumstances. For that reason this Clause proposes to put forward two solutions to meet two possible contingencies. There are many cases where husbands and wives are of the same religion at the time of their marriage, and in some such cases contracts are entered into by the husband and wife before marriage that either a boy or a girl should be brought up in one faith or another. As the law has hitherto stood, the wishes of the husband with regard to very young children prevails. It has been held that these pre-marital contracts have no legal effect. That is a hardship to the wife, and it is in her interests that the Bill has been promoted and drafted, but in actual fact the Bill offers no solution to that problem, because it is laid down that the only test by which the Court is to decide between the wishes of the father and mother is the test of the well-being of the child. The new Clause proposes in such cases that the contract agreement, or arrangement previously entered into between the spouses should be taken into consideration by the Court as to the future religion of the child.
The second Sub-section seems to me to be of very vital concern in unhappy marriages where these differences arise. There are many cases where husband and wife have professed the same religion at the time that they were married, and afterwards one of them has been converted to another religion. Difficulty must arise in such circumstances, and it is a very great hardship that, where the husband has been converted, the young children have been taken over with him against the wishes of the wife and against the understanding between the spouses originally. As I said when this Bill came on for Second Reading, I personally have known cases of this kind. I was concerned in a case where there 2329 were three children of very tender years. The husband and wife had been Anglicans at the time of marriage, but the husband became a Roman Catholic after marriage, and the children consequently had to become Roman Catholics also. That was a very great hardship to the wife, and I remember her saying to me after the case had been heard that there should be a new Guardianship Bill, by which she should be given a better right than she had under the present law. The Bill does not cure that defect. The Bill simply throws the Court back upon first principles of State policy, and it does not enable it to decide in a contingency of this sort. Take the case I have been giving to the House—the case of two spouses who professed the same belief at the time of marriage and who quarrel as to the religion of the child. The Court looks at the well-being of the child. No Court in the world is going to say that it is better for the child to be brought up in religion "A" than in religion "B." It seems to me to be only justice that the Court ought to take into consideration the fact that at the time of marriage the husband and wife professed the same religion, and the Court in giving a decision, all other things being equal, should give effect to that.
My Clause is not moved from any denominational standpoint, but from a legal standpoint. It is backed by hon. Members who profess various religions. It is not in the least a denominational Amendment nor moved in the interests of any denomination. No doubt it will ultimately serve the interests of religion, but it is simply brought forward in order to make the Bill deal with the facts given in this Amendment and with a contingency which may clearly arise when differences of opinion between husband and wife occur. I hope the hon. Gentleman who is going to answer for the Government on this question is not going to say it is an agreed Bill, and, therefore, cannot be open to controversy. It is ridiculous to call it an agreed Bill. The mere fact that negotiations have taken place between various societies and representatives of the Home Office does not make it an agreed Bill at all. Surely it is the duty of the House of Commons, before it passes a Bill which professes to be based on first principles, which may be very admirable, to consider how in the 2330 actual working of the provisions of the Bill effect can be given to its main principles. The provisions under this Bill are not going to be dealt with exclusively before experienced Judges of the High Court; they are going also to County Court Judges and stipendiary magistrates and even before Police Courts. Surely it is necessary, therefore, that an attempt should be made to meet the very common eventualities with which this Amendment deals. I am not laying very great stress on the form of words used, but I hope the Government and the House will see their way to bring this about and see that we do not pass into law Measures based on first principles only and which do not really meet the conditions of everyday life.
§ Mr. SAMUEL ROBERTSI beg to second the Motion.
§ Sir HENRY SLESSERI agree with the hon. and learned Member who moved the Amendment that certain defects will arise, necessarily, in the administration of this Act, but I do not think that the Amendment which the hon. and learned Member has moved is going to make the matter in the least easier. I think the Bill as drafted does give to the Court a very proper and reasonable discretion to deal with the whole question of the upbringing of the child, and among other things there will have to be considered this question of religious difference between the parents if that should, unfortunately, arise. The Amendment takes away from the Court its discretion. It says that the Court shall take into consideration this particular matter and give effect to a contract which may be proved to have been entered into. The whole object of this legislation is elasticity in dealing with particular cases, and you are going to apply a rigid rule. You are going to have an investigation as to whether a pre-nuptial arrangement was or was not, in law, a proper one, and enforceable in law. I think such an agreement would not be enforceable as a legal contract.
You may have litigation as to whether it is or is not a contract in law that a particular child shall have a particular religion. Having put that burden upon the Court, the Amendment then goes on to say "other things being equal." Therefore, having first compelled the 2331 Court to consider whether there be a contract or not, yet fetter the Court's discretion, and really destroy everything that you yourselves have set up, by saying "other things being equal." I do not know what the phrase "other things being equal" really means. The Bill says that in any proceeding before the Court for the custody or upbringing of a child the welfare of the child shall be considered. One question which will weigh with the Court will be, which is the better parent to be left with the custody of the child, quite apart from the question of religious denomination. Complication would arise where the Court decided that the mother was the better parent in the interest of the child, and the mother was ordered to bring up the child in the religion of the father, which differed from that of the mother. That would make the whole thing absolutely unworkable. The mother may be the better parent, yet because there may have been a pre-nuptial contract, and they may have agreed that the child shall be brought up in the religion of the father, the supporters of the Amen d-merit would have instructions given from the Court to the mother to bring up the child, possibly in a religion in which she did not believe. It is an impossible obligation to put upon the parent in such a case.
§ Mr. HURSTIt is an everyday occurrence in the Court to direct a parent to bring up a child in the faith of the other parent, even though the other parent does not profess the same religious faith as the parent who is left with the custody of the child.
§ Sir H. SLESSERThat is so, and so long as you leave discretion with the Court to deal with the case on its merits, I agree. That is what this Bill does. What I am objecting to is that you put a fetter on the discretion of the Court, and you say, in effect, "You shall construe a certain contract as having taken place and shall take that into consideration." The Court is to presume that the father and the mother did this or did that, and so forth. It is much better and much safer to leave the matter as it is in the Bill.
The hon. and learned Member has spoken with some degree of warmth as to the fact that this Bill is an agreed Bill between many persons, and agreed by this 2332 House. We have had a Second Reading of the Bill, and the Bill has been to a Committee. This particular proposal was never raised in Committee. The Bill went through Committee without amendment. Whether it be agreed outside this House or not, I say that there has been agreement in this House. After passing Second Reading, and passing through Committee without Amendment, it comes here on Report, and an Amendment is now proposed which I believe would very seriously jeopardise the chance of the Bill becoming law this year. The hon. and learned Member himself says that he is not wedded to the words in the Amendment. The whole question is that of devising exact words. The hon. and learned Member half hinted that the words of the Amendment did not carry out his intention. I suggest that we should leave the matter elastic as it is in the Bill, and if hardship or difficulty arises in the operation of the Act we could have amending legislation. But to begin by putting in words the effect of which nobody fully understands, and at this stage, would be most seriously to prejudice the chance of the Bill becoming law. I hope the Government will ask the House to allow the Bill to go through in the form agreed upon on Second Reading and in Committee.
§ The UNDER-SECRETARY of STATE for the HOME DEPARTMENT (Mr. Godfrey Locker-Lampson)My hon. and learned Friend, in moving the Amendment, expressed the hope that the argument would not be used that certain Amendments were controversial. I do not in the least want to use any argument that may be unfair, but I am very anxious that this Bill should become law at an early date. Although my hon. and learned Friend objected to the use of the word "agreed," this Bill is really an agreed Bill, or it was an agreed Bill—
§ Mr. LOCKER-LAMPSONThe Noble Lady has referred to the one matter that was in dispute in Committee upstairs.
§ Sir HENRY CRAIKThe hon. Member says this is an agreed Bill. Some of us profoundly distrust the Bill, and think that it will unwarrantably interfere with the sacred duties of parents. He must not therefore presume that all of us are agreed.
§ Mr. LOCKER-LAMPSONI did not mean that. When the late Government was in office a conference was held between the promoters of the Bill, the Home Office and various representatives of the big women's societies, and they came to the conclusion that this form of Bill would have the best chance of passing through Parliament. They were agreed not to press various questions that they wanted to see in the Bill, in order that there should be a more or less noncontroversial and agreed Bill which might become law at the earliest possible moment. I agree that there are a great many people who want this thing or the other thing inserted. My right hon. Friend the Member for the Scottish Universities (Sir H. Craik) probably would like to see a good many safeguards inserted.
§ Sir H. CRAIKI dislike the Bill. It now appears that those who support the Bill are fundamentally divided on its crucial points and its whole structure. This proposed Clause touches a vital point, and they are divided upon it.
§ Mr. LOCKER-LAMPSONIf we get away from the point we shall not see this Bill passed into law at all. We must have give and take. We have here a compromise, and as far as I can see it is the best kind of compromise that has appeared up to now. I am very anxious, if possible, to get this Bill and the Bill which follows it before 8.15 to-night. I hope I am not going to be unreasonable in regard to Amendments. There are one or two Amendments which I hope to accept. If we can get the Bills by 8.15, we shall have the advantage of the House of Lords considering them, and they will be passed into law at a very early date.
My objection to this Amendment is that the Bill laid down a principle that in any matter that comes before the Court the welfare of the child shall be the principal and paramount consideration. If you put an additional consideration into the Bill, there is no reason why you should not put other considerations into the Bill. In fact, there would be every reason to put other considerations into the Bill. I am afraid that if we put an Amendment like this into the Bill, the Court will imagine that Parliament has laid special stress upon the religious question, and they will go out of their way to take that 2334 into consideration before any other consideration, outside the welfare of the child. We lay down the general principle in the Bill that the welfare of the child is to be the paramount consideration. My hon. and learned Friend was not right when he said that that was the only consideration. If he will look at the remaining part of the Clause he will see that there are other general considerations which have to be taken into account. If for the sake of the welfare of the child the Court has to take into consideration the religious question, they will do so.
I am afraid we cannot accept this Amendment. The Bill would have very little chance of getting through if the Amendment were accepted. There are some Amendments, including one which the Noble Lady the Member for Sutton (Viscountess Astor) is going to propose, which I hope to be able to accept, and in view of that, I trust that my hon. and learned Friend will not press his Amendment.
§ Mr. RAWLINSONI have intervened because of the gross heresy which has been perpetrated from both front benches. It is the sort of heresy which one expected when the system of Standing Committees was set up. It is the sort of heresy which we were informed at the time would never be suggested in this House. My hon. Friend the, Under-Secretary tells us that this is an agreed Bill, and the hon. and learned Member the late Solicitor-General has made a similar statement. I protest as strongly as I can against that suggestion. Are we Members of Parliament to come down here and not to use our intellect as to whether an Amendment is important or not, simply to carry out what has been done on Second Reading?
§ Mr. LOCKER-LAMPSONAnd in Committee.
§ Mr. RAWLINSONThe hon. Member is making it worse. A Committee of which I was not a Member. I said at the time that Standing Committees were set up, that we should be told afterwards on the Report stage, "You have nothing to do with it, because you were not on the Committee." I do not take an interest one way or the other in this Amendment, but I do protest against the suggestion that this House is going to give up its rights to any Committee, or that it will surrender its rights to any 2335 Home Office officials or to any members of certain societies. I have not the slightest confidence in either body. It will be an evil day for the House of Commons if we are going to give up our rights, not simply to the extent that we are being forced to give them up, but in the way that is now suggested, that we are not to discuss an Amendment, and that we are not to exercise our own common-sense by giving a, vote upon it, because there has been a so-called agreement between Home Office officials and women's societies, who at Election times issue pamphlets and tell us what they think about us in such plain and unmistakable terms.
Do let us remember that the House of Commons is still a deliberative assembly. If we pass or reject this Amendment, every Member who votes does so on his own responsibility, and he cannot shirk his responsibility by saying that it is an agreed Measure. I cannot readily form a decision upon the merits of the question raised by the Amendment. On the whole I think the Amendment would probably increase an already difficult position. The House is going to leave to the determination of a registrar of a County Court or of a County Court Judge the question as to how a child is to be brought up, and he is to have full jurisdiction and to say in what religion it is to be brought up. I do not think it makes much difference whether or not you put in a restriction; but possibly it would be the best thing to let the Bill go through as it is.
I do hope, however, that we are not going to be told anything more about agreed legislation. There are some things—if I were speaking as a lawyer I might take, possibly, a different view—which are more important than rapidity of legislation. If you are trying to get through legislation by a particular time you confine it to people who happen to be in agreement about the Bill, and you lose a great deal of common-sense which ought to be exercised in the discussion of legislation. We are here because we represent various classes, and we are entitled to express our opinions freely on these legislative proposals. If you pass legislation rapidly it will bring a certain amount of grist to the mill of the 2336 lawyers, but I hope that the House will consider the questions carefully before they either pass or reject these Amendments.
§ Mr. CUNLIFFEI agree with my right hon. and learned Friend that a great deal too much has been made of the argument that the Bill is an agreed Bill. When you talk about agreement you want to know between whom it is agreed. I suggest that there can be no really agreed Bill unless it has been agreed to by all parties in this House, or by some persons entitled to speak on hehalf of all parties. If I thought that the Amendment would prejudice the passing of this Bill, I would not say a word in favour of it, but I suggest that the effect of the Amendment has been greatly exaggerated. It is common knowledge that one of the greatest difficulties which have to be dealt with in connection with the guardianship and custody of infants, is the question of the religion in which they are to be brought up. Speaking from some experience I should say that it is probably the greatest cause of applications to the Court. Therefore I should have thought that, when there is a question of whether children shall be brought up in a particular faith, that is one of those essential matters which the Court should be directed to consider when it is deciding upon the future of the child.
I am afraid that I do not agree with the Under-Secretary that this Bill has only one object, and that that object is the welfare of the child. There are two things which recommend this Bill to us. The first is that it asserts that the paramount consideration should be the welfare of the child. But the second is that it is no longer to be a presumption that the father has a greater claim to the guardianship and custody of the child than the mother. I have always said, in connection with this Bill, which I have endeavoured to support so far as lay in my modest power; that so long as you can get those two principles laid down clearly without any qualification it is unwise to overload the Bill with other matters which raise controversy There are other things which many of those who are promoting the Bill would like to have contained in it, and in this particular case I think that my hon. and learned Friend who has proposed this Amendment might 2337 on the whole, after the discussion that has taken place, withdraw it on the ground that we ought not to do anything which would jeopardise the Bill.
I have no doubt from my experience that the Judges who have to deal with these questions of custody and maintenance, when they have to consider questions affecting the religious faith in which their wards have to be brought up, will take into consideration all the matters mentioned in the Amendment. I am sure that my hon. and learned Friend will agree that, as far as the Judges of the Chancery Division are concerned—and they are the Judges who have most to do with matters of this kind—they have always shown the greatest anxiety to do what they could for the welfare of the children with whom they have to deal, and there is no branch of their work which has caused them so much anxiety or to which they have devoted so much time and care and attention. I would, therefore, appeal to my hon. and learned Friend net to press his Amendment, not because I believe that the Amendment is wrong in principle but because I believe that the Judges who will have to administer this Act, if it becomes an Act, will do all that the Amendment suggests that they ought to do, and that the paramount consideration is that we ought not to do anything to jeopardise the Bill, either in this House or in another place.
§ Sir H. CRAIKIn reference to what has been said by my right hon. Friend the Member for Cambridge University (Mr. Rawlinson), there is a further point on which I would raise an objection. The hon. Member who has just sat down discussed the Amendment very lightly, and appealed for its withdrawal, not because he thinks it a bad Amendment, but because very likely, after the discussion which has taken place, the Courts may follow the opinion of the hon. and learned Member who moved the Amendment. Above all, the one thing which we have to do, apart from any consideration as to whether this Amendment be wise or not, is, he says, not to do anything that will jeopardise the passing of the Bill. There are many of us on these benches, and some on the benches opposite, who think that the whole Bill root and branch is wrong, that it is contrary to human nature, and 2338 interferes in a very dangerous way with the relations between husband and wife, and between parent and child. It is all very well to say that there is universal agreement, but is there universal agreement?
Hon. Members pretend to agree, and yet when they come to the most fundamental duty that can rest upon parents, those who support the Bill differ completely upon that point. I stated my objections to the Bill on the Second Reading, and I state my objections again. Hon. Members say that this is an agreed Bill, that nothing can stop the Bill, and that we ought above all things to say nothing which would interfere in the slightest way with the passage of the Bill: but when they come to discuss a most important principle of it show that they are miles apart. What can be more different than the attitude of the hon. and learned Gentleman and the attitude of the late Solicitor-General? They differ entirely on the whole point, and to say that they are agreed upon a Bill, when there is such a vital difference between them on a fundamental matter of principle, is something very much in the nature of hypocrisy.
§ Question, "That the Clause he read a Second time," put, and negatived.