HC Deb 08 February 1963 vol 671 cc885-97

Order for Second Reading read.

3.26 p.m.

Miss Joan Vickers (Plymouth, Devon-port)

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

After that very interesting debate I begin by congratulating the hon. Member for Pontypool (Mr. Abse) on his success, and I hope that in Committee he will be equally successful and that we shall see the Bill on the Statute Book, in slightly amended form, in the near future. I thank the hon. Member for Lincoln (Mr. Taverne) for leaving me some time to move the Second Reading of my Bill.

This is not the first time, that I have brought forward a Bill on this subject. Unfortunately, my previous Bill, and that of a Member of another place, did not fit in with the Government's wishes and, therefore, I am having another try. I am quite willing to admit that I am not altogether happy with the drafting and would be glad to amend the Bill in Committee.

Last time, I was encouraged by a letter from my hon. and learned Friend the Joint Under-Secretary of State for the Home Department, on 5th June, 1962, when he said that the Government were not opposed in principle to amendment of the law of guardianship. That is one step forward. The difficulty is to find some form which the Government will agree to embody in a bill.

It is interesting to note that a great number of countries already have equal guardianship, including Greece, Australia, Canada—with the exception of Quebec Province—Denmark, Germany, the Netherlands, New Zealand, Norway, Russia, Albania, Yugoslavia, Finland, South Africa and Sweden. Even in Switzerland, where women do not even have the right to vote, there is the right to equal guardianship of infants, except in disputes, when the father decides. As far as I understand, the provisions work very smoothly in those countries.

It has been argued previously that it would be necessary on each occasion for both parents to sign any declaration, but I gather that this is not the case and that in most countries they are willing to take the signature of either of the parents. In Clause 1, there is a statement about a statutory declaration. I know that statutory declarations are not much in favour in English law, but the idea in this case is to avoid the publicity which a wife gets when she goes to court. In many cases she does not wish to go there, because she wants a reconciliation with her husband and if she takes him to court there is always some publicity, which makes it less likely that he will return to her at a later date.

I understand, however, that there are many penalties for making false statutory declarations and that this would be a safeguard against a woman stating that she had been deserted when she had not, or that she did not know the whereabouts of her husband for a period of at least twelve months, when, in fact, she did. I hope that that sort of suggestion will be considered, because my whole object is to give the woman the opportunity to keep her family happily with her once she has been deserted, or does not know where her husband is.

Clause 1 (b) says: … the father has for a period of not less than three months resided elsewhere than with the mother and during such period failed to pay to the mother … That is included because he may be stationed abroad or, because of housing difficulties, unable to share a home with her. If he was supporting her, she would not be able to say that he had deserted her, and she would have no grounds on which to demand the guardianship of the children.

Clause 1 (c) says: that the father has been in a country other than the United Kingdom for not less than three months and is in a country other than the United Kingdom at the time of the making of such declaration and the mother has reasonable grounds for believing that his absence from the United Kingdom will continue for a period of not less than three months … That is put in because it is now difficult if not impossible for a woman to get a passport for her children without going to court.

That is because passports are still issued by virtue of Royal Prerogative, and Regulation 4 (f), which is contained in Form A, says: Children under 21 years of age may not be granted a passport without the consent of a legal guardian who is the father, or, if he is dead, the mother, except where the applicant is married or in Her Majesty's Forces. The form goes on to state 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 the other person. In other words, if the mother wants to get a passport for her child, in the absence of the father she first has to go to court to get the guardianship of the child.

If a child has money in the Post Office Savings Bank and the father cannot be found, the mother is unable to authorise the drawing of the money. If the child is under 21 and it is necessary for him to have an operation, it should not be performed without the consent of the father. Although such operations often are performed, the doctor concerned puts himself in a false position, because in law he is not allowed to operate without the consent of the guardian, in other words, the father.

Then there is blackmail. If a man lives with another woman and his wife does not want to divorce him, hoping that in time he will return to her, the woman with whom he is living may make him claim the children if the wife does not agree to a divorce. Such cases have occurred and the wife has had to go to court to make her child a ward in chancery, or to gain guardianship, and neither is likely to induce the husband to return. Anything which is public or which gets into the newspapers is unlikely to make for happy marital relations later.

The mother takes half of the responsibility for the children, but by common law she has no legal rights other than custody rights. She is not the legal guardian unless she goes to court, even if the whereabouts of the husband are not known. If she is widowed she is immediately deemed to be qualified to be the guardian of a child, I understand that and even if she remarries she is qualified to be the guardian of her children.

Women are not entitled to any of the earnings of their children even though they may have brought them up, paid for their education, and looked after them during the absence of the father. If she takes her husband back and he lives under the same roof, he can immediately make claims on the children's earnings as long as he pays the rent of the house.

Section 2 (1, c) of the Matrimonial Proceedings (Magistrates' Courts) Act, 1960, says that the court may make an order where, by reason of the 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 in all the circumstances of the case. Yet, unless she takes special action, she is not the legal guardian of her children, although she may have to support her husband. This is extremely hard on the woman.

It is said that it is difficult for two people to have equal guardianship, that there arises the question who is to make the final decision in the case of dispute, but I suggest that if there were a serious dispute it would in any case have to go before a court for a final decision. The procedure which I am suggesting has worked quite happily in at least 15 other countries, including Australia, and I hope that it will be possible, in this country, to find some method by which under our law we can give both parents equal rights of guardianship.

Section 42 (1) of the National Assistance Act says: For the purposes of this Act— (a) a man shall be liable to maintain his wife and his children", and paragraph (b) says that the wife shall be liable to maintain her husband and children. Although she is liable to maintain her children, and if necessary her husband, she still has no means of obtaining the guardianship of the children except by going to court.

Section 7 (3) of the National Assistance Act says: Where a husband and wife are members of the same household, their requirements and resources shall in all cases be aggregated for the purposes of this Part of the Act. Everything she has has to be aggregated with her husband's, but she still has no say in the question of the guardianship of her children.

Section 24 (2) of the Children Act, 1948, says: The father and the mother of the child shall be liable to make contributions in respect of the child, so long is the child has not attained the age of sixteen … Many obligations are placed on the wife without any rights in return, and I feel that we have now come to the period in the history of this country when we should give equal rights to women in this respect.

I turn now to Clause 2 of the Bill. This is a completely new provision in regard to the guardianship of infants. It deals with a problem which has arisen because of the Legitimacy Act, 1959. Since the first adoption Act all practices have been based on the principle that the mother of illegitimate children was the sale parent whose consent alone was necessary for a court to grant an adoption order. However, the present position with regard to the future of children offered for adoption has become complicated.

The natural father, as distinct from the adjudged putative father, can intervene long after the child is secure and settled with adoptive parents. Despite the fact that he may have maintained no interest in the child, some courts argue that he must be sought out and told the rights of the Legitimacy Act. It is in dispute whether an application made by him for custody must be dealt with prior to the adoption, but irresponsible custody proceeding by the natural father may permanently deprive the child of the opportunity of adoption.

This is a very important point. It is most unsettling for the mother who has had to part with her child—perhaps for financial reasons, or because she feels that it is better for the child—to know that the father can intervene in the question of adoption. There is a grave threat to the security of the child, and consequent great anxiety for the mother and the adopters, lot alone the bad effect on the child. In particular, a woman may have been obliged to decide against marrying the natural father of her child because he has proved to be an undesirable character. She may, therefore, wish to have the child adopted, but the undesirable father—the man whom she thought was not worthy of becoming the legal father of her child—can still interfere and nullify her efforts on behalf of her child.

For these reasons I am bringing forward the Bill. I am not suggesting that it is the full answer to the problems, but I hope that it will be considered possible to allow the Bill to go to Committee in order that some action may be taken to rectify these injustices. I have no knowledge of drafting, but I was fortunate in having fairly good advice. If the Bill goes to Committee we may be able to decide that the principle of equal guardianship shall become the law of the country in the near future. If I have not produced the right answer in the Bill, I hope that the arguments that I have put to my hon. and learned Friend will convince him that some action should now be taken to provide that there shall be equal guardianship for both parents, in view of the hardship that can be caused, especially to women and children.

I hope that my hon. and learned Friend will consider the matter sympathetically and, if he cannot accept the Bill as it is, will be able to assure me that the Government will produce a Bill of their own in the not-too-distant future.

3.43 p.m.

The Joint Under-Secretary of State for the Home Department (Mr. Charles Fletcher-Cooke)

Under the Common Law the father and not the mother has the right of custody and guardianship of his legitimate infant. This is a fundamental complaint of my hon. Friend, and I have great sympathy with her in her sense of the injustice that these rules sometimes produce. But I suggest that, in many branches of the law, when the element of certainty comes into conflict with the element of equity—and especially where third parties and infants are concerned—the element of certainty must sometimes prevail. We believe that this is one of those cases.

During the father's lifetime the mother does not, in Jaw, possess such powers of guardianship and custody unless they have been conferred upon her by a court, but it is open to her at any time to apply to a court under various Statutes, especially the Guardianship of Infants Acts, 1886 and 1925. Under those Acts application may be made to a magistrates' court, a county court or the High Court; and in the proceedings the court can decide any dispute between the parents about such matters as the child's education, upbringing and religious instruction or the access to be accorded to each parent.

I think that my hon. Friend, who, if I may say so, moved the Second Reading of her Bill in a very persuasive way, is concerned in Clause 1 with the situation in which the mother has de facto custody of the child. The father is living apart from her, for one reason or another, and they are not on good terms, and yet the mother has not been given the legal custody of the child by order of the court.

Let us consider what practical problems arise for the mother in this category—not a very numerous category, but an important one—as a consequence of her not being her child's legal guardian. One finds three typical situations. The first is one which encounters no difficulty, where the mother and her husband are on good terms and are only temporarily separated. I do not think I need dwell on that except to say that there may be a problem about a passport, which I will deal with later. Nor is there much practical difficulty in the second typical situation, where the father has deserted the family and has disappeared, or at least takes no further interest permanently in the child.

Here the mother, as de facto guardian, will have a free hand to settle for herself the kind of question that falls to a legal guardian, but, again, there is the passport problem. Perhaps I might deal with the passport problem at this stage. A passport, as a general rule, should not be issued unless the child's legal guardian consents. But I understand that the rule is not inflexible and that, on cause being shown, the Passport Office is prepared to depart from it. Thus it is prepared to accept the consent of a mother who does not have the rights of a legal guardian if it can be established that the father cannot be traced; and when the father is abroad, and getting his formal consent would cause too much delay, I understand the Passport Office is ready to consider any other evidence of his consent, for example, a private letter confirming that he approves.

There remains the third of the three typical situations. Here the father and mother of the child are at odds, and each claims to exercise some, at least, of the guardian's powers. The mother—and, for that matter, the father, too, though he is the legal guardian—may be in real difficulty, and the law recognises this by making ample provision for their dispute to be resolved by a court. My hon. Friend argues, and I have great sympathy with her—

Miss Vickers

Before my hon. Friend leaves the passport question, what about a woman who has an illegitimate child, who has put a fictitious name as husband on the birth certificate, and cannot get the father's consent? This does happen. How would she ever produce a letter of consent?

Mr. Fletcher-Cooke

I gather that the instance put forward by my hon. Friend is of the mother of an illegitimate child who puts the name of a father, who may not exist at all, on the birth certificate. That is a difficulty. I think that in that case the mother has to get the birth certificate rectified, but I should not like to give an opinion off the cuff.

Mr. Reginald Paget (Northampton)

The mother of an illegitimate child is its guardian, so she is the consenting person. It does not matter at all.

Mr. Fletcher-Cooke

She has to deny her own statement that the child was legitimate and admit that the name of the father which she caused to be inscribed on the birth certificate was fictitious. That is the problem, I think, which my hon. Friend has in mind. I believe that this is a problem which arises more frequently than one might suppose, but it is a complicated legal problem on which—though I hate to take refuge in Departmental responsibililties—I would not like to give an answer on behalf of the Foreign Office.

My hon Friend argues that it is unfair that a mother who wants to exercise a legal guardian's powers over her child should have to take court proceedings, with the unwelcome publicity they attract, to enable her to do so, while the child's father is vested with these powers as of right and is free to exercise them unless and until he is displaced by a court. This, of course, raises in high relief the discrepancy between the treatment of the father and the mother, because the father does not need to take court proceedings. My hon. Friend is quite right about that. But, of course, this is where the element of certainty is so important. It is very important that third parties should know where the guardianship really lies.

It is not desirable that guardianship should be transferred secretly by an ex parte act of the type envisaged in Clause 1 of my hon. Friend's Bill. It is a pity that there has to be this inequality. But the best efforts of reformers over the past 40 years—and not forgetting my hon. Friend—have so far failed to find a practical and workable way of putting the child's parents on equal footing in this respect. Sucessive Governments have taken the view that, as a practical matter, one parent or the other must be the guardian of the child during their lifetime. I cannot answer, of course, for other systems of law.

The provision in Clause 1 is a new approach to the problem, and if it became law it would provide an entirely novel way in which a mother might acquire the powers of a legal guardian of her child. I compliment my hon. Friend on her originality, but I am sorry to say that her scheme appears to me to be open to serious objection in principle. As I understand it, Clause 1 of the Bill would enable the mother to obtain guardianship of her legitimate child from the father merely by making a statutory declaration that the whereabouts of the father are unknown; or that he is living apart from the mother and has not been paying a reasonable amount towards the maintenance of the child; or that he has been and will be abroad for specified periods; or that he is abroad and has consented to her having the guardianship of the child during his absence.

Here the difficulties are very great. Let me give some examples. The mother is to obtain the power of legal guardianship merely by making a declaration in private. The father is to be informed, if practicable. But he is to have no right to question any of the assertions made in the statutory declaration, some of which might well be open to dispute. For example, an assertion that the father had failed to pay … a reasonable sum having regard to his means towards the maintenance of the infant. Apparently the mother is to be able, by this simple means, to upset a decision of the High Court, or any other court, conferring custody of the child on the father or confirming his common law right to be the child's legal guardian.

The effect of the statutory declaration is to lapse on the father's return to the United Kingdom or, as the case may be, to the matrimonial home. But the Bill makes no provision for distinguishing between a statutory declaration that vests the mother with powers of guardianship and one that, having done so, has lapsed. Those who wore to act on a decision by a mother who purported to be the child's legal guardian would need evidence, not only that she had made the statutory declaration, but also that the father had not in the meantime returned to the United Kingdom or, as the case might be, to the matrimonial home; and that evidence might well be difficult to provide.

I respect my hon. Friend's view that the publicity of court proceedings in matters of this kind is to be avoided if possible. Certainly the court proceedings do conflict, as I recognise and as my hon. Friend has said, with the desire on the part of the wife on occasions to keep open the door to reconciliation. But the guardianship of a child is such a serious matter, and one that may depend so often on difficult matters of fact and law being decided, that it seems to us essential that this kind of dispute in the last resort should be settled publicly; or at least the decision of a court of law must be given publicly with proper legal safeguards. Whatever the objections to the publicity of court proceedings, we do not think they justify setting aside the machinery of justice in cases of this kind. I am sorry, therefore, that the Government must advise the House against accepting Clause 1 of this Bill in any form.

I should like to turn to Clause 2, which would have the effect—this is a different branch of the law relating to guardianship, though equally important —of limiting the circumstances in which the father of an illegitimate child might obtain the custody of the child. In England and Wales he had no locus standi at all in custody proceedings until Section 3 of the Legitimacy Act, 1959, removed that disability in the interests of the few illegitimate children who would be best in their father's custody.

The Act of 1959 was a Private Member's Measure for which there was considerable support from members of all parties in both Houses of Parliament. Some of its provisions proved controversial in the other place, but what is now Section 3 was readily accepted then and, to the best of my knowledge, it has not been criticised since it became law, save in its application to the exceptional case where the father seeks to gain custody of the child after the mother has offered the child to someone else for adoption.

I venture to remind the House of these circumstances because I think we must consider very carefully before we legislate to restrict the right so recently granted. Section 3 of the Act of 1959 gives the father of an illegitimate child the same right as the father of a legitimate child to apply to the court for custody of his child under the Guardianship of Infants Acts, 1886 and 1925.

Clause 2 of the Bill would restrict that right where the child is illegitimate, in various ways. Some amendments that this Clause seeks to make in Section 3 of the Act of 1959 seem unnecessary because they would merely repeat what is already law. The Clause appears to restrict the right to apply for custody to the man who has been adjudged to be the putative father of the child or who is liable by virtue of an order or agreement to the maintenance of the child. Even in that restricted category it disqualifies a man who has persistently failed without reasonable cause to discharge the obligations of a parent, or who has not made a regular payment or a substantial contribution towards the maintenance of the child, unless the child's mother consents to the making of an order, or is incapable of consenting, or cannot be found.

The object is no doubt to distinguish the deserving father from the one who may be considered to have forfeited his rights by neglecting to discharge his responsibilities towards the child. I find that this possibility was explored when the Bill of 1959 was debated in another place. The Lord Chancellor of the day said of a similar proposal: There are cases where there is a deserving applicant, a man who has recognised his parental responsibilities to the extent of supporting and even living with the illegitimate child and the child's mother, but where there may not be an order or agreement. I should not like to see him barred from the right to apply for custody. But when I considered this point I found that it was difficult to define this deserving class. I considered whether the Bill should prescribe a minimum amount of maintenance payments which would qualify a man; whether the order should be recent, say in the twelve months before the application; whether the application might be made at any stage, and what should be the position of a man who is ready to support a child but who is prevented from doing so because of the child's mother, because, for reasons of her own, she has refused to allow him to do so."—[OFFICIAL REPORT, House of Lords, 7th July, 1959; Vol. 217, col. 834.] These were, he said, practical points, not debating points. He advised against the acceptance of an Amendment, and his advice was accepted, rightly if I may say so. For that Amendment, like Clause 2 of this Bill, would have excluded some applicants who might be more deserving on merits than some who would be admitted.

I have no doubt that by the exercise of some ingenuity it would be possible to draft a provision that would reduce such injustices to a minimum, but I am afraid that any arbitrary line would cause injustice to some of those who were on the wrong side of it. It still seems better to avoid, if we can, a specific provision of this kind, and I think it is avoidable.

In considering whether to grant an application by a man for the custody of his illegitimate child, the court must be guided by Section 1 of the Guardianship of Infants Act, 1925, which, as I have said, requires the court to regard the welfare of the child as the first and paramount consideration. That seems the best criterion in every case. How well the applicant has in the past recognised his parental obligations is no doubt a matter that the court will take into account in considering whether it would be for the child's welfare to be given into his custody.

Mr. Paget

Does the hon. and learned Gentleman propose to talk the Bill out?

Mr. Fletcher-Cooke

I have a certain amount to say because this is an important matter.

I do not think it need be so decisive a factor that the court should be prevented even from considering those cases in which the man has failed in some respect. It seems best to leave the court full discretion to decide the merits in each case. The second main restriction—

It being Four o'clock, the debate stood adjourned.

Mr. Speaker

Debate to be resumed, what day? Does the hon. Lady wish to name a day?

Miss Vickers

I thought that after what had been said it would not be worth while, Mr. Speaker.

Mr. Speaker

No instruction.

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