GUARDIANSHIP OF INFANTS (Hansard, 7 March 1962)

§ Miss Joan Vickers (Plymouth, Devonport)

I beg to move, That leave be given to bring in a Bill to amend the law with respect to the guardianship and custody of infants. The reason for asking leave to bring in this Bill is because, by the common law of England, it is the father who is deemed to be the guardian of the child, and I should like to see equal guardianship, that is, that the mother should be able to be a guardian, too.

In a happy home the mother has an equal voice in how to bring up her family. But in many homes the mother does more than her fair share and takes more of the responsibility of bringing up the family; yet, by the common law of this country, she has no legal rights, only customary rights. For example, should her husband decide that the children should go to a particular school or church, even though there may have been an arrangement before marriage, the wife has no right to say that the child shall not go to that school or to that church. The husband has the legal right to make the decisions.

In this day and age travel is very much easier, and many people go overseas for jobs. There are, too, unfortunately, a number of women who are deserted by their husbands. They are still not regarded as legal guardians, even if they have no knowledge of the whereabouts of their husbands. A woman can work and keep the children, but should the husband return he can then claim—unless she has been to the courts—to exercise his right of guardianship over the children. In fact, in law, the father is entitled to the services of his infant children and to their earnings as long as they are living with him and being maintained by him. If he returns to his deserted wife after a certain number of years, particularly when the children are of earning age, he gets all the advantage.

There is one particular difficulty in regard to passports. These are still issued by virtue of the Royal Prerogative, and Regulation 4 (f) contained in Form A states: Children under 21 years of age may not be granted passport facilities without the consent 418 of the legal guardian—that is the father—or if he is dead the mother, except where the applicant is married or in H.M. Forces. The form states that the mother, or any other person, claiming, during the lifetime of the father, to be the legal guardian must produce a court order committing the child to the custody of the mother or that other person. In other words, if the mother wishes to get a passport for her child in the absence of her husband she has to go to court and get the guardianship of the child before she can do so.

It seems strange that should a woman be widowed she automatically gets all these rights. It has been thought in the past that it may be difficult for a child to have two guardians, both mother and father, but, in fact, it is possible now for a child to have two guardians. The father has the right to appoint another guardian of his child should he wish to do so, and if he does not wish to make the mother the other guardian he can choose anybody else he likes.

One of the chief reasons why I want this facility for the mothers is that nowadays, particularly in school curricula, many educational tours are arranged overseas, and it is extremely difficult for the mother if she is anxious for her child to join one of these tours. She may have no idea of the whereabouts of her husband, and is therefore in difficulty in obtaining a passport, unless she applies to the court. Section 2 (1, c) of the Matrimonial Proceedings (Magistrates Courts) Act, 1960, says, that the court may make an order, where, by reason of impairment of the husband's earning capacity through age, illness, or disability of mind or body, it appears to the court reasonable in all the circumstances so to order, a provision that the wife shall pay to the husband such weekly sum not exceeding seven pounds ten shillings as the court considers reasonable… We have, therefore, reached a position in which a wife can be forced to keep her husband. Yet she still does not have the legal guardianship of her own children. Article 55 (c) of the Charter of the United Nations refers to the observance of human rights and fundamental freedom for all without distinction as to race, sex, language or religion. It is a question of obtaining for the married woman the guardianship of her 419 child, and at present she can obtain that guardianship only by applying to the courts.

There is also the difficulty of the illegitimate child. As far as I can discover, under common law, the mother has no legal guardianship even over such a child. The Guardianship of Infants Act, 1925, modified the common law rights of the father to have the sole custody of his infant child, but it is limited by the phrase: where any proceeding is before any court. Section 2 of the Act gives the woman like powers to apply to the court as are possessed by the father, but she cannot have the guardianship unless she takes action when she is before the court. In other words, the mother has to establish her right to have the child by appealing to the court. I hope that the House will give me leave to bring in the Bill, which, I am sure, will solve many of the present difficulties.