HC Deb 29 February 1952 vol 496 cc1611-24

Order for Second Reading read.

12.32 p.m.

Mr. Robert Crouch (Dorset, North)

I beg to move, "That the Bill be now read a Second time."

This is undoubtedly the greatest day in my life, because it affords me the opportunity of introducing into this House a Measure which, if the House accepts it, will bring relief to the necessities of some of my fellow creatures, those fellow creatures being children who are unable to care for and look after themselves. It is not the fault of a child that it is born out of wedlock. The child's creation rests not with itself. At birth it is provided with a soul which, at the end of its life, it will again have to return to our Maker.

The difficulties of a child born out of wedlock are greater than those of a child born in wedlock because it misses the assistance and help given by the father. The cost of maintenance, whether a child is born in or out of wedlock, is in each case the same. After we reach the age of discretion, the State has no concern whatever whether we are born in or out of wedlock, and looks to us all to make an equal contribution to the affairs of the State. History has recorded that many men and women born out of wedlock made great contributions to the arts and sciences and did a great deal in their work in industry to build up this great country.

The purpose of this Bill is to bring the law relating to the maintenance of children born out of wedlock into line with that for legitimate children in regard to the maximum amount that may be ordered for maintenance by a magistrate's court and the age up to which maintenance may be made payable. The Bill is a logical sequel to the Married Women (Maintenance) Act, 1949, and the Guardianship and Maintenance of Infants Act, 1951, which deal with the position of the legitimate child.

It is a sign of our times that there should be a general wish that the interests of the illegitimate child should be safeguarded as much as those of the legitimate child, and it is hoped that the House will, by giving this Bill a Second Reading, approve the simple principle of equality in the matter of maintenance. In the past, Parliament did not show itself so solicitous of the welfare of illegitimate children.

If one goes far enough back into history, one will find that an illegitimate child had, by the old law, no legal rights and owed no obligations to its parents, and that Parliament's main concern was directed to securing that the parish should not be damnified by the expense of looking after illegitimate children. It even went so far as to provide for penalties of imprisonment for women who gave birth to children born out of wedlock and caused expense to the parish. It was not until 1844 that a mother was entitled to apply for maintenance from a putative father.

As stated, the Bill is a sequel to the Acts of 1949 and 1951. The 1949 Act raised the maximum that might be ordered by way of maintenance for a legitimate child from 10s. 0d. to 30s. 0d. a week. The 1951 Act raised the previous maximum from 20s. 0d. to 30s. 0d. The present maximum in respect of a child born out of wedlock is 20s. 0d. a week. It was 5s. 0d. in 1872, it was raised to 10s. 0d. in 1918 and to 20s. 0d. in 1923. Clause 1 of this Bill will make the maximum 30s. 0d. a week.

Under the Act of 1872, maintenance ceased when the child reached the age of 13 years. Before 1949, an order for the maintenance of children under the Summary Jurisdiction (Separation and Maintenance) Acts ceased when the child reached the age of 16. The Married Woman (Maintenance) Act, 1949, provided that payments might be continued up to the age of 21 if the child were engaged in a course of education or training. Under the Guardianship of Infants Acts, there never has been a limit below the age of 21 up to which maintenance might be paid under an order, although no application could be made in a magistrates' court after the child reached the age of 16.

The first three subsections of Clause 2 bring the period for which maintenance may be ordered in an affiliation order into line with the period for the maintenance of legitimate children under the Summary Jurisdiction (Separation and Maintenance) Acts and the Guardianship of Infants Acts. I think that it is not generally known that under Section 5 of the Poor Law Act, 1844, justices are empowered after the death of the mother to appoint some person to have custody of the child and that that person may enforce payments in the same manner as the mother. I believe that provision is seldom used, and the reason for its disuse is not by any means clear.

The law has provided in the case of both the legitimate and the illegitimate child that the National Assistance Board, or the local authority, or a fit person to whom the child has been committed by a court, or the managers of an approved school who have the custody of the child, may recover money towards the cost of maintenance from the person whose duty it is to maintain the child.

In the case of both the legitimate and the illegitimate child, the financial liability of a person ceases when the child reaches the age of 16. The Bill preserves that position as regards the illegitimate child, while allowing a public authority to benefit from the increase in the maximum amount of maintenance if it looks after the child. The relative position of legitimate and illegitimate children will remain unaffected by the change.

Under the present bastardy law, there are provisions which enable private persons who are looking after an illegitimate child by arrangement with the mother to have the benefit of an affiliation order. The rights of these persons are preserved in Clause 2 (7). The Acts of 1949 and 1951 contained provisions that payments under them should be made without deduction of tax. Clause 4 has the same provision.

The objects of the Bill are very simple, namely, to bring the law into line with current thought and to do for the illegitimate child what has been done by the Acts of 1949 and 1951 for the legitimate child. Some of its provisions, however, are rather technical. The reason for this is that the law relating to bastardy has very different origins from the laws relating to the maintenance of legitimate children as the latter arise from the relationship between husband and wife. To bring the two sets of law into line with each other is not as simple a task as would appear. However, it is not necessary to go into these technicalities at present. All this can be explained in Committee if the House gives the Bill, as it is hoped it will, a Second Reading today.

Finally, I should like to thank right hon. and hon. Gentlemen on both sides of the House who have given me assistance in the preparation of the Bill, and I should like also to thank those organisations with headquarters in this great city who have also given me the benefit of their advice Without that help, I should not have been able to present the Bill in the way that I have done today. I have every reason to hope that, because of the support which has been promised me from all quarters of the House, the Bill will be given a Second Reading.

12.43 p.m.

Mr. Geoffrey de Freitas (Lincoln)

I beg to second the Motion.

The hon. Member for Dorset, North (Mr. Crouch) has covered the ground so well that I need not make more than a short speech. Ever since I came to know the hon. Member two years ago when he entered the House I have been aware of his interest in the care of children. When I was Under-Secretary of State at the Home Office we were constantly discussing such matters together. It was no surprise to me that when he was successful in the Ballot he chose a subject such as this on which to introduce a Bill to improve the law.

Private Bills in the past, it appears from reading their titles, have been largely concerned with the care of the defenceless, whether people or animals. In the last Parliament the majority of the Private Members' Bills which were introduced concerned animals. To preserve a proper balance it is right that in this Parliament we should consider such an important matter as the care of children.

The hon. Member referred to a number of distinguished people who had been born out of wedlock. That is true, and it is right that we should remember that one of our very great kings, William the Conqueror, was himself William the Bastard. We ought to realise it and be frank about it. We should not treat this problem as our predecessors hundreds of years ago in this House treated it. The hon. Member referred to the fact that in the old days Parliament was much more concerned with punishment and the relief of the parish rates. I have here the first Act on this subject passed by our predecessors in the 18th year of the reign of Elizabeth I. It says: Be it ordained, declared and enacted by Authority of this present Parliament… concerning Bastards begotten and born out of lawful Matrimony (an Offence against God's Law and Man's Law), the said Bastards being now left to be kept at the Charges of the Parish where they be born… It goes on …That two Justices of the Peace … shall and may by their Discretion take Order, as well for the Punishment of the Mother and reputed Father of such Bastard Child, as also for the better Relief of every such Parish… by charging such Mother or reputed Father with the Payment of Money weekly…. Then it goes on to say that if they do not keep the order the …Mother or reputed Father… shall… be committed to… the Common Gaol, there to remain without Bail. There is not a word in it about the care of the child. One of the best things about living in this century is that we look at these problems from the angle of the care of the child.

In the 1945 Parliament this House, at the request of my right hon. Friend the Member for South Shields (Mr. Ede), passed the Children Act, which was another great step in showing the care which Parliament insisted the State should take of children. It was a sign of the wisdom of Parliament that it put the administration of the Act under the most ancient and senior Department of State, the Home Office. I feel I can say that in the presence of the former Home Secretary and my successor, one of the joint Under-Secretaries of State at the Home Office, since there is no hon. Member here with any past or present connection with the Foreign Office.

The Bill may be improved in Committee, but I feel that today—this is the Second Reading—we should concentrate on its good points. It is a good Bill. I often find that, if I talk too much, disagreements arise, and as I do not want to disagree with anything which has been said I end by expressing the hope that the House will give the Bill a Second Reading.

12.50 p.m.

Lieut.-Colonel Marcus Lipton (Brixton)

Like my hon. Friend the Member for Lincoln (Mr. de Freitas), I cordially support the initiative that has been shown by the hon. Member for Dorset, North (Mr. Crouch), in taking advantage of the good fortune which has come his way and which has enabled him to move the Second Reading of this Bill, which will, in a limited way, remove some of the anomalies that now differentiate between the legitimate and the illegitimate child. I do not like the word "illegitimate" as applied to these children and I wish some other adjective could be found to describe them.

No doubt the Under-Secretary of State is aware of a very useful report on the subject, produced by a joint committee of the British Medical Association and the Magistrates' Association. It is one of a series of reports produced by this joint committee, drawing attention to omissions and defects in the law. One report was about sexual offences, and the latest is on the law in relation to the illegitimate child.

It will be encouraging to the hon. Member for Dorset, North, to realise that this joint committee, consisting of responsible men and women from the two organisations, include in their recommendations a suggestion that the maximum amount that can be ordered by magistrates for the maintenance of an illegitimate child should be increased to the sum applicable in the case of children born in wedlock. For a short period only it was even possible to obtain more in a magistrates' court for an illegitimate child than for a legitimate child.

I hope that the Under-Secretary will hold out some favourable prospect of the Bill coming into law at an early date. There are other aspects of the law relating to illegitimate children which should receive the earliest possible attention. In that connection I would suggest to the Under-Secretary that if these other improvements cannot be tacked on to the Bill the problems involved might well be referred to the Royal Commission which is now considering the subject of marriage and divorce. In reply to Question No. 141 on 21st February, the Home Secretary stated: The problem of the illegitimate child is linked with other questions of family life which fall within the terms of reference of the recently appointed Royal Commission on Marriage and Divorce, and I think it would be wiser to await the Commission's report."—[OFFICIAL REPORT, 21st February, 1952; Vol. 496, c. 67.] The Question asked the Home Secretary whether he would set up a committee of inquiry into the law relating to the illegitimate child.

I would commend to the favourable notice of the Under-Secretary of State, who is present today, the proposal that the Royal Commission which is now sitting should consider—it can hardly avoid doing so—some of the laws about illegitimate children. It would be economical of personnel and money to ask the Commission to undertake this further investigation, which would not involve a great deal of extra work but would ensure the subjects being considered and reported upon with reasonable speed.

Another point which might be considered in connection with the Bill relates to relief from taxation for putative fathers in respect of their payments for illegitimate children. The position is not clear, so far as the Inland Revenue authorities are concerned. In the kind of case we are considering, the father, possibly not being a married man, is unable to claim the marriage relief, and, the child not being legitimate, he is in some difficulty in claiming relief in respect of children.

Cases can occur in which a man is penalised twice. He pays under the order of the court but is denied any of the Income Tax relief that would be available to a married man maintaining a child of his own. Perhaps these are points for the Committee stage and I will not take up the time of the House further with them. It may well be that some of the other recommendations of the joint committee, if they do not involve any controversial points, could be incorporated in the Bill, provided that that does not hold up the progress of the Bill to the Statute Book. I hope that the Government will find it possible to provide the necessary facilities to enable the Bill to reach the Statute Book at the earliest possible moment.

12.58 p.m.

Mr. Lawrence Turner (Oxford)

I shall not seek to detain the House for more than a minute or two but, as one of the sponsors of the Bill, I want to support it and to express the hope that the Government will feel able to provide an early opportunity for its Committee stage.

The terms of the Bill have been most ably stated by my hon. Friend the Member for Dorset, North (Mr. Crouch) who has taken us through complicated Acts of Parliament with great skill. The Bill has been seconded with the persuasion and the well-known legal skill of the hon. Member for Lincoln (Mr. de Freitas). The Bill has also the powerful support of the right hon. Gentleman the former Leader of this House and ex-Home Secretary, and that is a healthy sign which angurs well for it.

I ought to declare my interest in that there exists a body called The Fellowship of St. Nicholas, of which technically I am a director, and which, in places like Brighton, Hastings, and St. Leonard's, looks after just such children. Our fees, however, are the satisfaction of looking after these children; our dividends are the children; themselves.

In contrast to the thunder and intensity of our debates earlier this week, it is almost like a day of spring sunshine to be here this Friday morning taking part in a debate on such a Bill. It is surely a remarkable tribute to this House that, in spite of so much pre-occupation with our financial affairs, our defence arrangements and our industrial problems, we are yet able to find time to discuss the needs of small children who, as the Mover of this Motion said, are certainly unable to help or speak for themselves.

This Bill seeks to amend an existing Act and thereby to remove an existing anomaly. All hon. Members here desire to see justice done at whatever level. That is perhaps why we are here. However much we may differ in our views as to how justice may be done in the political scene, we are unlikely to fall out over a Bill of this character which simply seeks to bring the payments under affiliation orders for illegitimate children into line with those made for legitimate children.

It is also an essentially Christian Measure, and I would suggest to the House that, as children legitimate or illegitimate are believed to be equal in the sight of God, so also ought they to be equal in the sight of those who make affiliation orders. It could be argued, though I think unconvincingly, that if this Bill were passed into law it would encourage immorality on the grounds that children born out of wedlock will be equally well looked after as those born to married couples. I submit to the House, however, that whatever our views may be on sexual morality on the part of parents, we ought never to visit those views on the offspring of such people and that we shall never stop downward moral trends by discriminating between children.

In the homes to which I have referred we have orphans born in wedlock and children born out of wedlock living side by side, with 30s. for the one and 20s. for the other. It cannot be justified in these days, when every penny counts and has to be watched, for children to be worth different amounts in such places, since they cost the same to clothe, house and feed.

In conclusion, I hope the House will give this small Bill a Second Reading and that the Government, which seems to be in a friendly mood this morning, will say that at any rate it backs it.

1.3 p.m.

Mr. Ede (South Shields)

Since more Private Members' Bills are killed on Fridays by people who try to extol their merits and take an undue time in doing so, and because I am anxious to see this Bill passed, my remarks will be short.

This is a good Bill. It remedies an anomaly, in the law as we now recognise it, and I am quite certain that it will assist benches of magistrates throughout the country who have to make affiliation orders in doing what they cannot now do, but what they often think they ought to be able to do. I hope that the Bill will have a speedy passage through Committee and that it will reach the Statute Book at an early date.

There is only one thing I want to add to the speech of my hon. Friend the Member for Lincoln (Mr. de Freitas), who quoted a terrible Section from an Act of Elizabeth I. It is anomalous that such words should have been used about illegitimacy in that reign because probably rather more than half the subjects of Her Majesty Queen Elizabeth I considered that she was illegitimate. Therefore, it is all the more remarkable that probably a very Protestant Parliament thought it necessary to use such terrifying—

Lieut.-Colonel Lipton

It was probably a Conservative Parliament, too.

Mr. Ede

No, I would not say that. The Elizabethans were comparatively good Parliamentarians and they knew how to stand up to that very regal lady on occasion in a way that was highly commendable. The only mistake they ever made was in going to her and suggesting that she should get married, a subject which she regarded as a matter of her own private concern.

I hope that this Bill will have a speedy passage into law, and I commend its merits to my hon. Friends on this side of the House and trust that they will support it.

1.6 p.m.

Mr. Cledwyn Hughes (Anglesey)

I join with my hon. Friends and with hon. Gentlemen opposite in welcoming this Bill most warmly, and I consider that the House should be very grateful to the hon. Member who introduced it. As it stands, the law makes a cruel distinction between those children who are born in wedlock and those who are called illegitimate. Incidentally that is a most invidious term which should be abolished.

The law of this country, both in spirit and in its application for centuries, has seen to it that the sins of the parents shall be visited upon the children. The preamble to the Poor Law of 1676, which my hon. Friend quoted, shows the spirit in which this problem was tackled by our predecessors. The law has at all times placed a moral blame upon the child as well as upon the parents.

My only regret today is that this Bill does not form part of a more comprehensive measure of reform. We have had piecemeal Measures since 1872. The editor of Lushington's Law of Affiliation and Bastardy describes the law on this subject as a "disgusting patchwork" and, since the Bastardy Laws and Maintenance Act, 1872, we have had a number of small Acts which have done nothing to change the fundamentally wrong attitude adopted towards this important subject. It is the duty of the Government to introduce a new and more comprehensive Measure at an early stage imbued with a new and a more Christian spirit. Even today, unfortunately, there are sections of society which look askance at the illegitimate child, and it is the clear duty of Parliament to give a lead in this matter and to wipe the slate clean of all the old Acts which reek of prejudice and discrimination.

There is a desire abroad to change things, and this is illustrated by a leading article which appeared in the "Manchester Guardian" of 1st February which summarised the present unsatisfactory state of affairs in this fashion: English law remains cruelly punitive towards a group of children who deserve no punishment—those who are described as illegitimate. I would also join my hon. Friend in commending to the House the report of the Joint Committee of the British Medical Association and the Magistrates' Association on the law in relation to the illegitimate child. It is a splendid report and makes a number of important recommendations of which I hope the Government will take notice. This Bill is an urgently needed first instalment, and I hope that it will make rapid progress through all its stages.

1.10 p.m.

Mr. Julius Silverman (Birmingham, Erdington)

In extending a welcome to the Bill, I think it is certainly overdue; and as has already been said, it goes some way to correct an anomaly: that is, of bringing payment which is made in the case of an illegitimate child into line with that for a legitimate child. At the same time, the circumstances of the illegitimate child and its mother—and, for that matter, its father also—are not in quite the same financial relationship as in the case of the legitimate child.

As my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton) pointed out, the provision for an illegitimate child used to be greater than that for a legitimate child. It was at one time £1, whereas the payment for a legitimate child was 10s. That was not entirely an anomaly. A case was to be made that the mother of a legitimate child would usually be provided for, whereas the mother of the illegitimate child was in many cases unable to work, certainly during the early infancy of the child, and would have no other means whatever of support. It may well be that there is a case for a payment in excess of 30s., and this is an aspect to which consideration may be directed.

On the other hand, it should always be borne in mind that the payment which the putative father has to make in these cases is not a penal payment. It is simply intended to be a fair contribution, according to his means, to the support of the child.

I am not happy about the provisions of Clause 2, which provides that the putative father should continue to pay for the child after the age of 16 if the child is being further educated. The position of the father is quite distinct from that of the father of a legitimate child. He has no right of access. Usually, he is deprived of any interest in the child whatever, and it does not seem entirely fair to place him in the same position as the father of a legitimate child and to compel him to continue payment after the child has reached the age of 16.

Moreover, the Clause is retrospective in effect. Whilst I am not condemning all retrospective legislation as such, frankly this is one of the more objectionable forms of it. Under the Clause, it is possible to revive against a man a liability which, apparently, has ceased. I hope that consideration will be given to this aspect during the Committee stage in order that the Bill may be completely fair.

On the whole, this is a very useful Bill. It will do a great deal to help the unfortunate women who are unable to support their children from the payments which are now being made. I hope that the Government will do what they can to find time to expedite the Bill's passage into law.

1.13 p.m.

The Joint Under-Secretary of State for the Home Department (Sir Hugh Lucas-Tooth)

I am sure that the whole House will wish to congratulate the hon. Member for Dorset, North (Mr. Crouch) and the others who have been responsible for the introduction of the Bill. During the debate, nothing has been said which is not favourable to its general purpose. Like the right hon. Member for South Shields (Mr. Ede), I shall make my remarks short, because I have no wish to delay the Second Reading of the Bill.

I can say right away that the Government welcome the Bill and that we will do what we can to assist in improving it, so far as that is possible, in Committee and getting it on to the Statute Book.

There are two principal provisions of the Bill. The first deals with increasing the amount of maintenance for illegitimate children. It is interesting to see that whereas in 1872 the maximum amount was 5s. and in 1918 it was 10s., it became 20s. in 1923 and now, by the Bill, it is proposed to be 30s. I have not consulted the Treasury to see whether this increase runs only pari passu with the alteration in the value of money, but on the whole, I think, it shows some absolute increase. The amount which is now proposed will produce equality as between the illegitimate and the legitimate child.

The second main provision of the Bill is as regards the period of maintenance during which the father can be ordered to provide for the child. Here again, the extension from the age of 16 to the age of 21 is in consonance with present day general views. It covers the period when the child may be receiving the higher kind of education, to which a quite considerable number of illegitimate children can look forward.

Most of the points which have been made during the debate can properly receive attention when the Bill is dealt within Committee, but perhaps I may answer a point made by the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton), who referred to the report of the British Medical Association Committee and pointed out, quite correctly, that there are other recommendations in that report which are not dealt with by the Bill. The hon. and gallant Member suggested that they might be referred to the Royal Commission which is now sitting.

Those recommendations go probably a good deal wide of the terms of reference of the Royal Commission, but I promise the hon. and gallant Member that I will draw the matter to the attention of my right hon. and learned Friend.

Lieut.-Colonel Lipton

And, if I may suggest it, the Attorney-General also.

Sir H. Lucas-Tooth

Yes.

The hon. Member for Anglesey (Mr. C. Hughes) referred to the law of bastardy as, I think. "a disgusting patchwork" and suggested that the Government might look at the matter with a view to introducing a consolidation Bill. That also has been noted, and I will undertake to draw the matter to the attention of my right hon. and learned Friend. I am not certain that the hon. Member may not have gone further than that. If he did, it would, of course, involve a much larger measure of legislation, about which there might be difficulties.

I can do no more than say that this is a good Bill, that the Government will do what they can to facilitate its passage and that I hope the House will give it a unanimous Second Reading.

Question put, and agreed to.

Bill accordingly read a Second time.

Committed to a Standing Committee.